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Full text of "Lincoln, the lawyer"

LINCOLN 

THE LAWYER 




FREDERICK TREVOR HILL 



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LINCOLN THE LAWYER 



Digitized by the Internet Archive 

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LINCOLN 
THE LAWYER 



BY 



FREDERICK TREVOR HILL 

author of " the case and exceptions," 
"the accomplice," etc. 




toimtjt^m 



NEW YORK 
THE CENTURY CO. 
1912 



Copyright, 1905, 1906, by 
The Century Co. 



Published, October. 1906 



TO 
THE LADY 



"I lay great stress on Lincoln s career as a law- 
yer — much more than his biographers do; . . . 
and I am, sure his training and experience in the 
courts had much to do with the development of 
those forces of intellect and character which he 
soon displayed on a broader arena, 3 ' 

The Hon. Joseph II. Choate on Lincoln, at Edinburgh, Scotland, 
November 13, 1900 

"The best training he [Lincoln] had for the 
Presidency, after all, was his twenty-three years' 
arduous experience as a lawyer traveling the cir- 
cuits of the courts of his district and State. Here 
he met in forensic conflict, and frequently de- 
feated \j some of the most powerful legal minds of 
the West. In the higher courts he won still 
greater distinction in the important cases coming 
to his charge" 

President McKinley at the Marquette Club, 
February 12, 1896. 



\ 



CONTENTS 

CHAPTER PAGE 

Foreword xv 

i Lincoln's Mythical Birthright to the 

Law 3 

ii The Real Source of Lincoln's Profes- 
sional Aspirations 11 

in The Primitive Bench and Bar of Indiana 19 

iv Legal Apprenticeship 27 

v Lincoln's First Argument and His Early 

Attitude toward the Law .... 35 

vi Lincoln the Law Student 46 

vn Admission to the Bar — The Primitive 

Bench and Bar of Illinois ... 56 

viii Lincoln's First Partnership 70 

ix His Early Cases and Competitors ... 82 

x Lincoln the Managing Clerk .... 96 

xi Early Success in the Courts .... 104 

xn A Notable Partnership 112 

xin Judge Logan and Lincoln 124 

ix 



CONTENTS 

CHAPTER PAGE 

xiv Lincoln the Head of a Law Firm . . . 134 
xv Lincoln the Lawyer in Congress . . .148 

xvi Life on the Illinois Circuit 161 

xvii Judge Davis and Lincoln 178 

xvih Leader of the Bar 196 

xix The Jury Lawyer 208 

xx The Cross-Examiner 221 

xxi Legal Ethics 235 

xxii Legal Reputation 245 

xxm Law in the Debate 263 

xxiv As Candidate 280 

xxv As President 293 

Appendices — 

i Illinois Supreme Court Memorial 313 
ii Lincoln's Case against the Illinois 

Central R. R 316 

in Lincoln's Cases in the Illinois 

Court of Last Resort .... 320 

Index 327 



LIST OF ILLUSTRATIONS 

Abraham Lincoln in 1860, with Autograph, Frontispiece 



PAGE 



Books from Abraham Lincoln's Library . . . . 15 

Autograph of Bowling Green 30 

Judge Lawrence Weldon 37 

A Legal Opinion from Lincoln ©n a Question of 

Surveying 53 

Judge John Reynolds 63 

Hon. John T. Stuart 71 

Office of Stuart & Lincoln as it is To-day ... 74 
Letter Written by Lincoln Concerning Preparation 

for the Bar 76 

"Praecipe," in Lincoln's Handwriting, in His First 

Case, Hawthorne v. Woolridge 83 

Lincoln's Jocose Caption over an Entry of Stuart 

& Lincoln's Private Docket 86 

A Legal Document in Lincoln's Handwriting, 

Signed Stuart & Lincoln 89 

Hon. James A. McDougall, Hon. O. H. Browning, 

Hon. Lyman Trumbull, and Maj.-Gen. John A. 

McClernand 91 

xi 



LIST OF ILLUSTRATIONS 



PAGE 



A "Dictionary for Primary Schools" with Lincoln's 

Autograph • . 107 

Stephen T. Logan 115 

Building in Springfield, in which Logan & Lincoln's 

Office was Located 127 

Beginning and Conclusion of a Legal Document in 

Lincoln's Handwriting, Signed Logan & Lincoln 130 
Old Court-house at Lincoln, the County Seat of 

Logan County 136 

William H. Herndon 139 

Legal Document in Lincoln's Handwriting, Signed 

with the Firm Name and by Lincoln Personally 145 

Grant Goodrich 160 

Original Offices of Lincoln & Herndon (Exterior) 163 

Hon. Samuel H. Treat 165 

Map of Illinois, Showing Circuit of Lincoln's Law 

Practice 169 

Old Court-house at Metamora, Woodford County 171 
Original Offices of Lincoln & Herndon (Interior) 173 

Hon. David Davis 179 

Court-room, Tazewell County 187 

Old Court-house at Pekin, Tazewell County . . . 189 
Facsimile of a Judgment Written by Lincoln as 

Acting Judge 191 

Portrait of Lincoln 203 

Leonard Swett 213 

Hon. James T. Hoblitt and Hon. Robert R. Hitt 223 

xii 



LIST OF ILLUSTRATIONS 

PAGE 

Facsimile of a Part of Lincoln's Memorandum Brief 
in the Case of Lewis v. Lewis in the United States 

Supreme Court 247 

Lincoln's Pass as Counsel for the Illinois Central 

R. R 249 

Facsimile of First Page of Lincoln's Opinion on a 
Question Involving the Construction of the 

Charter of the Illinois Central R. R 251 

Facsimile of Part of Lincoln's Trial Brief in His 

Case against the Illinois Central R. R. . . . 254 
Memorandum Brief in Lincoln's Handwriting, Op- 
posing an Attempt to Break a Will 256 

Bridge over the Mississippi at Davenport. — Old Pier 
of First Mississippi Bridge at Davenport, . . 260 

Judge Stephen A. Douglas 265 

Chair Used hy Lincoln in His Law Office . . . 281 

Maj. -Gen. John M. Palmer 283 

N. B. Judd 287 

Inkstand Used by Lincoln in His Law Office . . 289 
Bookcase and Table Used by Lincoln in His Law 

Office 290 

First Draft, in Lincoln's Handwriting, of a Bill for 

the Emancipation of Slaves in Delaware . . . 303 
Second Draft, in Lincoln's Handwriting, of a Bill 
for Compensated Emancipation of Slaves in 
Delaware 306 

Lincoln's Comments on the Proposed Measure of 
Compensated Emancipation in Delaware . . • 308 

xiii 



FOREWORD 

The testimony concerning Abraham Lincoln is 
voluminous — the exhibits are almost numberless ; 
but one important point in the vast record has 
been slighted by the mighty array of able and 
eminent advocates who have presented it to the 
world, for no one has heretofore attempted a 
summing-up of the great President's legal career. 

The explanation of this neglect is simple. Lin- 
coln's achievements as a statesman are so trans- 
cendency important that they have demanded 
and justly received exhaustive and well-nigh ex- 
clusive consideration. Compared with his historic 
guidance of the nation, his experience at the bar 
has appealed to his biographers as being merely 
episodic. 

But if it be true that the statesman^ legal 

training qualified him for his great task ; if it be 

probable that without such training he could not 

have accomplished his stupendous results ; if it be 

xv 



FOREWORD 

possible that he would never have been called to 
his high station unless he had been admitted to 
the bar— then surely the story of his professional 
life deserves more than a passing comment, a 
paragraph, or even a chapter. 

It is certainly strange that the literature in- 
spired by Lincoln's record, though vast in quan- 
tity and rich in quality, should include no special 
study of his legal aptitudes. One autobiograph- 
ical volume of life on the Illinois circuit is coupled 
with his name; but most of the notable histories 
dispose of his twenty-three years' practice as an 
attorney in less than two chapters, and the minor 
works bury it altogether under a mass of un- 
authentic anecdote and trivial reminiscence. 

Rut because the influence of Lincoln's legal 
training can be plainly traced in many of his most 
momentous actions, because there is evidence that 
this training proved invaluable to him at critical 
moments, because he lived true to the noblest 
ideals of his profession, and was, in the highest 
meaning of the words, a great lawyer, the treat- 
ment which the historians have accorded his pro- 



FOREWORD 

fessional career seems inadequate to the writer, 
and it is to justify this conclusion that these 
pages are submitted. 

The writer gratefully acknowledges the assist- 
ance of all those historians and biographers whose 
works contain any authentic information concern- 
ing Lincoln's career at the bar; he also desires to 
record his appreciation of the courtesy of the 
court clerks and other officials who kindly facili- 
tated his work in the examination of the old 
records of the Illinois circuit courts, and to ex- 
press his thanks to the Hon. Robert Lincoln, 
Major William H. Lambert, the Hon. Robert R. 
Hitt, the Hon. Adlai E. Stevenson, the Hon. 
James Haines, the Hon. James Ewing, General 
Alfred Orendorff, Mr. Isaac N. Phillips, the 
Hon. James Hoblit, and other members of the 
Illinois Bar, and to Mr. E. M. Prince, Mr. 
George P. Davis, Mrs. Jessie Palmer Weber, 
and other officers of the Illinois State Historical 
Society, and the McLean County Historical So- 
ciety, for their generous and efficient aid. 

xvii 



FOREWORD 

Especially is he indebted to the late Judge 
Lawrence Weldon, of the United States Court 
of Claims (the last surviving member of the bar 
who traveled the circuit with Lincoln) , who 
shortly before his death placed at the writer's dis- 
posal his recollections of Mr. Lincoln as a lawyer 
and his reminiscences of the days when he and the 
great President practised together on the old 
Eighth Illinois Circuit. 

Since the first edition of this volume was issued 
in 1906 a more exhaustive examination of Mr. 
Lincoln's record at the Bar has disclosed ad- 
ditional facts and figures of importance which 
have been incorporated in the foot-notes and ap- 
pendices of the present edition. For his assist- 
ance in procuring part of this additional material 
the writer is indebted to the courtesy of Charles 
W. Moores, Esq., of the Indiana Bar. 

March, 1912. 

Frederick Trevor Hill. 



xvm 



LINCOLN 
THE LAWYER 



LINCOLN 
THE LAWYER 

I 

. LINCOLN^ MYTHICAL BIRTHRIGHT TO THE LAW . 

ONE of his eulogists declares that "Lincoln is 
not a type. He stands alone — no ancestors 
—no fellows— no successors." The facts fully 
justify the tribute. 

Assuredly the great Emancipator was a man 
apart, without equals or followers, and he him- 
self waived all claims to ancestry. "I don't know 
who my grandfather was," he remarked; "and 
am much more concerned to know what his 
grandson will be." 

But though the first American knew little 
about his family history and cared less, his biog- 
raphers have devoted themselves to the subject 
with zeal and enthusiasm, and, thanks to them, we 
now know who his progenitors were, even to the 

3 



LINCOLN THE LAWYER 

sixth or seventh generation, and are fully in- 
formed of their domiciles and wanderings and 
the various stations of life to which it pleased 
God to call them. 

The result of all this exhaustive and laborious 
research is mainly negative; but there are those 
who find signs in the record, and among the 
strange conclusions which have been derived from 
its perusal, perhaps the strangest is that Lincoln 
inherited his legal talents and aptitudes. Cer- 
tainly nothing could be more unwarranted than 
this; for little as there is in his origin to account 
for him as a man, there is even less to explain 
him as a lawyer. 

Unless we accept the well-supported but not 
established contention that the great President 
was descended from the Lincolns of Hingham, 
Massachusetts, there is absolutely no precedent 
in the family for his choice of a profession; and 
those who struggle to prove that he came of a 
race of jurists and statesmen virtually defeat 
themselves when they take refuge in the genea- 
logical records of New England. 

Samuel Lincoln, the founder of the Massa- 
chusetts house, had four sons, and the descend- 
ants of some of those sons undoubtedly attained 



A MYTHICAL BIRTHRIGHT 

high distinction at the bar. Indeed, one of them, 
the Attorney- General of Jefferson's cabinet, de- 
clined a nomination to the Supreme Court of the 
United States, and at least two others were law- 
yers of recognized ability. But the trouble with 
these facts is that the distinguished Attorney- 
General and the other legal luminaries belonged 
to branches of the Massachusetts family with 
which Abraham Lincoln was only remotely, if at 
all, connected ; and the shadowy claim that he had 
any birthright to the law utterly disappears when 
the record is more closely examined. 

The original Lincoln of Hingham was an 
Englishman who came to America apprenticed as 
a weaver. His fourth son, Mordecai, from whom 
the President is supposed to have descended, 
was a blacksmith. 1 His eldest son, another 
Mordecai, was a miller and blacksmith. His eld- 
est son, John,— the "Virginia John" of the biog- 
raphies, — was a farmer; and his third son, Abra- 
ham Lincoln's great-grandfather, was likewise a 
tiller of the soil. This leaves only his grandfather 
and father to be accounted for, and the former 

1 The genealogists are careful to explain that a blacksmith was 
not really a blacksmith in those early days, but rather an "iron- 
worker." ("New England Historic Genealogical Register," Vol. 
XLI, p. 153 n.) This nice distinction does not affect the question 
at issue, however comforting it may be for other purposes. 

5 



LINCOLN THE LAWYER 

was a farmer, and the latter a carpenter. A 
weaver, two blacksmiths, three farmers, and a 
carpenter — those are the callings represented by 
the President's forefathers for seven generations. 
Small wonder, then, that the believers in heredity 
have recourse to the collateral branch of the dis- 
tantly related Massachusetts family for prece- 
dents entitling the son of a backwoods carpenter 
to enter the honorable profession of the law. This 
is virtually all that is known of Lincoln's ante- 
cedents upon which to predicate the theory of his 
natural talents for the law. 

It is more than possible that Lincoln inherited 
many sterling qualities of mind and character 
from the worthy mechanics and farmers from 
whom he was descended, but there is very little 
on the face of the record to encourage any definite 
claims on their behalf for the shaping of his 
career. Certainly the paternal influence was not 
inspiring. His father was an ignorant man, 
amiable enough, but colorlessly negative, without 
strength of character, and with no ambition 
worthy of the name. His only effort to influence 
his son's future was a half-hearted attempt to 
teach him carpentry ; but he soon abandoned such 
instruction and allowed the boy to occupy him 

6 



A MYTHICAL BIRTHRIGHT 

self with odd jobs about the farm when he could 
not hire him out to neighbors in need of an extra 
hand. Nancy Lincoln, the lad's mother, was bet- 
ter educated than most of the pioneer women. 
She taught her husband to read and write and 
sent her son to his first school ; but she died when 
he was only about nine years old, and it was his 
step-mother who encouraged his ambition for 
education. 

All the misinformation concerning Lincoln's 
professional career is not, however, derived from 
the experts in heredity. A great deal of non- 
sense has been written about his early years, and 
a grave effort has been made to prove him a 
youth of exceptional promise, a brilliant scholar, 
and a prodigy of application and industry. As 
a matter of fact, he did not begin to develop 
mentally until he was about eighteen, — even in 
the prime of life his intellectual processes were 
not quick, — and there is nothing to indicate that 
he was a particularly industrious boy. Five 
pedagogues — two in his birthplace, Kentucky, 
and three in Indiana — share the honor of con- 
tributing to his elementary education; but had 
their pupil been never so gifted, they could 
scarcely have discovered it, for his schooling 

7 



LINCOLN THE LAWYER 

amounted to less than a year in all- -about as long 
as it must have taken some of the minor biog- 
raphers to collect and record the pointless remi- 
niscences of his alleged schoolmates. 

He lived the healthy, outdoor life of the 
average country lad of the settler days, exhibit- 
ing no precocity or abnormal tendencies to dis- 
tinguish him from his fellows. He was fond of 
tramping about the country, not caring much 
for shooting or fishing, but entering into other 
sports and pastimes with zest and spirit, and ex- 
celling at games requiring strength; not in love 
with work for work's sake, but willing to do his 
share without grumbling, seeing no visions of 
coming greatness, and troubling himself with no 
ponderous thoughts concerning his career. This 
is the sum and substance of his childhood, and 
the real inspiration of his very human develop- 
ment has suffered at the hands of the enthusi- 
astic chroniclers who picture him as a child of 
destiny— dreamy, mysterious, and miraculously 
endowed. 

In one respect he was undoubtedly exceptional. 
He liked reading — an unusual trait among the 
pioneer settlers of the Middle West— but exag- 
gerated emphasis has been placed on this charac- 

8 



A MYTHICAL BIRTHRIGHT 

teristic, which was by no means unique. For in- 
stance, the books which comprised his earliest 
reading are admiringly called to our attention, 
with comments which suggest that they fore- 
shadow his career. The list includes "iE sop's 
Fables," "Robinson Crusoe," "Pilgrim's Pro- 
gress," a history of the United States, and 
Weems's "Life of Washington." There is, of 
course, nothing remarkable about this catalogue. 
Almost every item in it formed part of the read- 
ing of every intelligent American boy of the 
period, whether he lived in the backwoods or in 
the city. Indeed, the only really notable fact 
about the much-quoted list is that Lincoln worked 
three days at twenty-five cents a day to compen- 
sate for an accidental injury to the "Life of 
Washington," which he borrowed from "Blue 
Nose" Crawford. There was nothing angelic 
about the youthful Lincoln, however. He con- 
sidered "Blue Nose" as mean as any other boy 
would have thought him under similar circum- 
stances, and we know that he nicknamed and 
otherwise ridiculed the stingy old farmer; but 
his dawning character is indicated by his prompt 
recognition of the claim and his faithful pay- 
ment of the damages. 

9 



LINCOLN THE LAWYER 

This is one of the few stories touching Lin- 
coln's youth which has any bearing on his tem- 
perament or his career. Most of the anecdotes of 
his boyhood exhibit him as a child of superhuman 
qualities, and many of them served to misrepre- 
sent other great men before he was born. 

One episode, founded on fact, however, is re- 
sponsible for a grave misunderstanding about 
the impulse which prompted him to follow the 
law. We know from his own statement that be- 
fore he had been many years in Gentryville, Indi- 
ana, he had borrowed from one source or another 
all the books he could lay his hands on for a cir- 
cuit of fifty miles, and among the generous 
lenders was a Mr. Turnham. This gentleman 
lent him a copy of the Revised Statutes of Indi- 
ana; and, if we are to believe the biographers, it 
was this volume — as dull a tome as ever lay be- 
tween sheepskin covers— which appealed to his 
boyish imagination and inspired his ambition for 
the profession of the law. 



JO 



II 



THE REAL SOURCE OF LINCOLN S PROFESSIONAL 
ASPIRATIONS 

HISTORICALLY, this copy of the Indiana 
Statutes is interesting. It is undoubtedly 
the first law book which Lincoln ever read; but 
that its musty, dry-as- dust pages could have 
fascinated an out-of-doors boy of seventeen, or 
imbued him with any intense longing for a legal 
career, is against all human probability. One 
biographer asserts that he read it with all the 
excitement and avidity with which an ordinary 
boy would read the romances of Dumas, and 
another caps this with the statement that his hero 
"read and re-read it until he had almost com- 
mitted its contents to memory ; and in after years, 
when any one cited an Indiana law, he could 
usually repeat the exact text and often give the 
numbers of the page, chapter, and paragraph." 

To appreciate the absurdity of such statements 
it is only necessary to examine the volume in 

11 



LINCOLN THE LAWYER 

question. It is dull as only statute law can be dull, 
about as easily memorized as the dictionary, and 
of no enduring authority. Only a short time 
after he had read this compilation 1 the legislature 
amended some of its provisions, annulled others, 
and generally revised the contents. And yet we 
are gravely told that "in after years, when any one 
cited an Indiana law, he could usually repeat the 
exact text and often give the numbers of the 
page, chapter, and paragraph" of this obsolete 
revision. What a useful accomplishment! 

That is a fair sample of the grotesque carica- 
turing which Lincoln has suffered at the hands 
of sentimentalists not too deeply familiar with 
human nature, to say nothing of statute lore. 

But those who believe in the epoch-marking 
influence of the volume in question are not satis- 
fied with the concession that it was the first law 
which Abraham Lincoln read. They contend 
that it not only inspired his choice of a profes- 
sion, but also imparted his first knowledge of 
American government; and they conjure up a 
diverting picture of the anointed youth reading 

1 The Revised Statutes of Indiana which Lincoln received from 
Mr. Turnham were published in 1824. He certainly never saw them 
before 1826. They were revised in 1831, and a little later they were 
again amended. The original copy which he handled is in existence. 

12 



PROFESSIONAL ASPIRATIONS 

with eager eyes and glowing cheeks the wondrous 
words of the Declaration of Independence and 
the Constitution of the United States which pref- 
aced its pages. 

This conception does credit to the imagination, 
but it fades under the cold light of facts. Long 
before he borrowed Turnham's famous Statutes, 
Lincoln had read at least one history of the 
United States, to say nothing of Parson 
Weems's "Life of Washington." Possibly he 
had never read either the Constitution or the 
Declaration in its entirety until the Indiana re- 
vision came into his possession; but to claim that 
he obtained his first insight into American gov- 
ernment, at the age of seventeen, from that vol- 
ume, is sacrificing sense to sentiment. More- 
over it argues a lamentable ignorance of the wis- 
dom dispensed at the country stories, especially 
in a community where, to use a common phrase 
of the times, "There was a politician on every 
stump." 

Jones's store was the popular forum of Gen- 
tryville, and Lincoln had been a constant attend- 
ant at all its sessions since he entered his teens. 
There he had met and talked with lawyers, lis- 
tened to stump-speakers, tried a little oratory 

13 



LINCOLN THE LAWYER 

himself, and won considerable reputation as a 
ready talker among his fellow-townsmen; and 
there, most important of all, he had heard of the 
doings of the Bbonville court, and had kept in 
intimate touch with its proceedings. 

Life at Gentryville, Indiana, with its dull, 
trivial round of hard labor at delving, grubbing, 
corn-shucking, rail-splitting, and the like, could 
not have been exhilarating. Doubtless it was a 
happy enough life for an easy-going, good-hu- 
mored, healthy, growing boy ; but he would have 
been stupid, indeed, if he had not availed himself 
of such amusements as the neighborhood af- 
forded, and the one great diversion and intellec- 
tual stimulant of the community came through 
the sessions of the Boonville court. 

Boonvillewas fully fifteen miles from Gentry- 
ville, but people often traveled farther than that 
to attend the civil and criminal trials at the 
county-seat. Every term of the court, of course, 
meant a market ; and the pioneers looked forward 
to the coming of the circuit judge, not only be- 
cause it promised entertainment, but also for 
business reasons. 

The court was their theater, their lecture-plat- 
form, their common meeting-place, their center 

14 




These books, from left to right, are "Religious Truth Illustrated from Science "—Hitch- 
cock ; "Gibbon's Rome," 4 vols.; "Dictionary of Congress "— Lanman ; " Paley's Works"; 
" Angell on Limitations"; "The Republican Party "—Sumner, i860; "The Illinois Convey- 
ancer," and "A Dictionary of Primary Schools " 




These books, from left to right, are " Journal of the House of Representatives of the Tenth 
General Assembly of Illinois," "Life of Black Hawk," "Illinois Convention Journal," " Laws of 
Illinois, 1841," " Revised Statutes, Illinois, 1845," "Law Register, Livingston, 1852," "Dean's 
Medical Jurisprudence," and "Acts and Resolutions passed at the Thirtieth Congress of the 
United States, 1848 " 

Books From Abraham Lincoln's Library 



PROFESSIONAL ASPIRATIONS 

of government, and to it they flocked for mental 
refreshment and recreation in a holiday spirit. 
Entire families would sometimes make the trip, 
virtually living in their wagons while the ses- 
sion lasted, and the proceedings supplied material 
for conversation and discussion long after the 
event. Altogether it was a great occasion, and 
the court-house was usually full to overflowing. 

It is not surprising, then, that young Lincoln 
cheerfully trudged to Boonville on foot and sel- 
dom missed a trial. There were rare exhibitions 
of human nature in the legal combats which he 
witnessed in the little log court-house, plenty of 
drama and excitement in the clash of the bat- 
tling attorneys, and a vast deal of information for 
any active mind. There was also grim, earnest, 
serious business transacted by the judge and 
juries — fascinating, engrossing business; and 
doubtless the youthful Lincoln, listening to the 
crude legal champions and responding to the 
dawning powers within him, mentally matched 
himself against them. Surely it must have been 
then that his imagination was first quickened and 
his ambition vitalized and focussed. 

Unfortunately, there are no records of the 
Boonville court in existence to-day, but there is 

17 



LINCOLN THE LAWYER 

evidence that he witnessed at least one hotly con- 
tested murder trial within its walls, and we know 
that the event made a profound impression on 
his mind. The defendant in that case was rep- 
resented by one Breckenridge, and the advocate 
made such a powerful summing-up for his client 
that young Lincoln, with boyish enthusiasm, 
sought him out after the verdict to congratulate 
him on the speech and its result. 

"I felt," he remarked to Breckenridge in the 
White House many years afterward, "that if 
I could ever make as good a speech as that, my 
soul would be satisfied, for it was the best I had 
ever heard." 

Even assuming for the sake of argument, 
that this episode occurred after he had perused 
the Revised Statutes of Indiana, it ought not to 
be difficult to decide which exerted the more 
powerful influence on his future career — the 
flaming eloquence of the backwoods orator or 
the lifeless pages of statute law. 



18 



Ill 



THE PRIMITIVE BENCH AND BAR OF INDIANA 

OF course the Boonville court-house bore no 
resemblance to anything even remotely 
suggesting the domed dignity of a modern hall 
of justice; but, though no picture of the building 
has been preserved, the loss is not important, 
for similar structures have been accurately de- 
scribed by lawyers who practised in those early 
days. 

For instance, we know that the first court- 
house at Springfield — destined to be the capital 
of Illinois — was erected at a cost of forty-two 
dollars and fifty cents. 1 It was built of rough 
logs and consisted of one room, — "the jury re- 
tiring to any sequestered glade they fancied for 
their deliberations," — and the Indiana courts 
were almost as unpretentious. They were either 

1 It is a significant fact that the jail cost twice as much as the 
court-house. 

19 



LINCOLN THE LAWYER 

frame or log structures, generally divided into 
two rooms, the larger serving as a place of trial 
and the smaller as clerk's office, judge's cham- 
bers, and jury-room combined. At one end of the 
trial-room there was usually a platform three 
feet high, and on this was placed the judge's 
bench, a rough board affair capable of seating 
three men. In front of this platform stood a 
crude plank settee for the lawyers and a small 
table for the clerk of the court, and official pri- 
vacy was insured for those dignitaries by an im- 
provised railing consisting of a long pole fas- 
tened to the walls with withes. The rest of the 
space was open to the public, and so freely did 
it avail itself of the privilege that there was sel- 
dom even standing room inside the building, 
and seats in the windows were always at a pre- 
mium. 

One of the circuit prosecuting attorneys of 
Indiana who practised during Lincoln's boyhood 
has left a record of his observations at Fall 
Creek. "The court was held in a double log 
cabin," he writes; "the grand jury sat upon a 
log in the woods, and the foreman signed the 
bills of indictment, which I had prepared, upon 
his knee. There was not a petit juror that had 

20 



PRIMITIVE PRACTICE IN INDIANA 

shoes on; all wore moccasins and were belted 
around the waist and carried side-knives used by 
the hunters." 

It must not be inferred from this that only- 
jurors went armed and caparisoned in this 
fashion. In the days when Lincoln haunted the 
Boonville courts, everybody, from the judge to 
the humblest spectator, wore deer-hide suits and 
moccasins of the same material. Indeed, he had 
arrived at manhood before clothing of dyed wool 
and tow began to be worn, and for a long time 
afterward it was only the women who adopted 
such garments. 

But the judge and juries in buckskin were 
shrewd and fearless administrators of justice, 
and the lawyers who practised before them were 
men of equal caliber. Almost anyone who chose 
to do so could follow the profession of the law. 1 
There were no regular examinations for admis- 
sion to the bar, and a license to practice could be 
obtained by any applicant of good moral stand- 
ing, which was about the only qualification most 
of the practitioners lacked, according to one au- 

ir This is virtually the case in Indiana to-day. See Horner's an- 
notated Indiana Statutes (revision of 1881 supplemented to 1901), 
chap, ii, art. 31, sec. 962. 

21 



LINCOLN THE LAWYER 

thority. If a man was a fluent talker, pugna- 
cious, shrewd, and able "to think on his feet," he 
was fully equipped for the duties of the profes- 
sion. Education was not necessary, and al- 
though there were a few advocates in the early 
history of Indiana who were fairly well read, 
none of them had any pretentions to learning. 
Indeed, scholarship would have been lost on the 
courts, to say nothing of the juries, for many of 
the judges were uneducated, some were almost 
illiterate, and none of them well grounded in 
the law or versed in its technicalities. 

General Marston Clark was one of the judges 
whose portrait has fortunately been preserved. 
He was an uneducated, backwoods, muscular six- 
footer whose judicial costume was a hunting- 
shirt, leather jmntaloons, and a fox-skin cap, 
with a long queue down his back and who wrote 
his name "as large as John Hancock in the Dec- 
laration of Independence. " Truly a formidable 
figure of a man, and although history reports 
that he was "no lawyer," his conduct of the case 
of one John Ford demonstrates that no lawyer 
could trifle with him. 

This John Ford was arrested for horse-steal- 
ing, and his counsel interposed various technical 

22 



PRIMITIVE PRACTICE IN INDIANA 

objections to the indictment on the ground that 
the prisoner's name was John H. Ford, and not 
plain John Ford; that there was no value al- 
leged for the stolen horse; and, finally, that the 
animal was not a horse, but a gelding. All of 
these preliminary pleas were overruled by the 
court, and the trial proceeded, with the result 
that the prisoner was convicted and sentenced 
to thirty-nine lashes. Then the defendant's at- 
torney moved for a new trial because there was 
no proof that the crime had been committed in 
Indiana. Judge Clark was no lawyer, but he 
saw the force of this contention, and advised 
counsel that he would take the matter under con- 
sideration and render his decision within twenty- 
four hours. The moment the court adjourned, 
however, he ordered the sheriff to see that the 
thirty-nine lashes were well laid on, and when 
the court reopened next morning, he gravely 
took up the unfinished business of the previous 
day. He had come to the conclusion, he an- 
nounced, that the point raised by Ford's attor- 
ney was well taken and that a new trial must be 
granted. But at this juncture the prisoner in- 
terposed in his own behalf, protesting that he 
knew when he was beaten, and that he had had 

23 



LINCOLN THE LAWYER 

enough law and desired the court to take no fur- 
ther trouble on his account. 

Another judge is reported to have quelled a 
disturbance in his court by descending from the 
bench and thrashing the nearest offenders to a 
standstill. 

"I don't know what power the law gives me to 
keep order in this court," he admitted, as he re- 
sumed his coat and the bench, "but I know very 
well the power God Almighty gave me." 

Little informalities of this sort were not in- 
frequent, but they detracted nothing from the 
dignity of the courts, though the free-and-easy 
proceedings were sometimes astonishing. 

"As I entered the court-room," relates an ob- 
server of the Hudson trial, 1 "the judge was sit- 
ting on a block, paring his toe-nails, when the 
sheriff entered out of breath and informed the 
court that he had six jurors tied up and his dep- 
uties were running down the others" 

Apparently jury duty was no more popular 
in those days than it is now. 

But because these frontier courts and their 
presiding officers lacked the formality and de- 
corum which a later day demands, it must not be 

1 See Smith's "Early Trials in Indiana." 

24 



PRIMITIVE PRACTICE IN INDIANA 

inferred that there was any element of farce or 
travesty in the administration of the law. The 
surroundings which to-day lend substance and 
dignity to courts would not have been tolerated 
on the frontier. Formalities would have divested 
the proceedings of all meaning and interest 
for the people, and made a mummery out of 
what was real. The pioneers were not peas- 
ants who had to be impressed by ceremonials 
and awed into a respect for authority. They 
were thoughtful, independent men, governing 
themselves, and the judges, the courts, and the 
laws were of their own making. The idea of a 
judge maintaining order with his fists may seem 
ludicrous to us ; but judicial robes, to say nothing 
of mace-bearers, wigs, and canopies, would 
have seemed far more laughable to the settlers. 
They possessed a natural genius for self-gov- 
ernment, recognized the authority of the law, 
and they fulfilled it. 

In the case of Hudson before referred to, 
where the judge was surprised at his toilet and 
the jury had to be corralled by sheriff's deputies, 
the defendant, a white man indicted for killing 
an Indian, was promptly convicted despite the 
fearful prejudice against the redskins which ex- 

25 



LINCOLN THE LAWYER 

isted among the pioneers — an exhibition of judi- 
cial temperament and regard for duty which 
should shame many a jury of to-day. 

It was among men of this stamp and charac- 
ter that Lincoln passed his boyhood, and it was 
their administration of justice which won his re- 
spect and first encouraged him to think of a 
legal career. 



26 



IV 



LEGAL APPRENTICESHIP 



LINCOLN had just reached his majority 
-^ when his father, who always saw promis- 
ing land on the other side of his fence, decided 
to migrate from Indiana, and after a long 
journey, fraught with all the hardships inciden- 
tal to travel in those days, the family reached 
Decatur, Macon County, Illinois, in the spring 
of 1830. Up to that time the young man had 
given his father the entire benefit of his services, 
but he had long been anxious to start life on his 
own account, and shortly after the new home- 
stead was staked out he began to shift for him- 
self. Except in the matter of health and 
strength, he was poorly equipped to earn his own 
living, for he had no education beyond reading, 
writing, and ciphering to the rule of three, and 
his mental power was still largely undeveloped. 
For a year he attempted nothing more ambi- 

27 



LINCOLN THE LAWYER 

tious than manual labor, working m the imme- 
diate vicinity of his father's house at odd jobs of 
all sorts, including the splitting of several thou- 
sand rails destined to become famous in Ameri- 
can history. 

One of those odd jobs took him to the village 
of New Salem, and there he became what the 
Fell autobiography calls "a sort of clerk" in 
Offutt's grocery store. The duties of this office 
were not very onerous, however, and the young 
clerk was soon devoting every spare moment to 
his books. People used to meet him trudging 
along the country roads, reading as he walked; 
customers found him stretched upon the store 
counter, absorbed in his books; and his compan- 
ions reported that he studied late into the night. 
Certainly he was self-educated in the broadest 
sense of the term, and it has been truly said that 
he "never finished his education. To the night 
of his death he was a pupil, a learner, an in- 
quirer, a seeker after knowledge, never too 
proud to ask questions, never afraid to admit 
that he did not know." 

Offutt's assistant, however, never had the 
slightest intention of remaining a clerk, and, 
mindful of his ambition to become a lawyer, 

28 



LEGAL APPRENTICESHIP 

he attended a debating club, made up of boys of 
the neighborhood, where he had a chance lo 
"practise polemics," as he expressed it, and 
speedily gained a reputation among his fellows 
as a dangerous opponent in argument. 

Before the days of this club, however, he had 
already demonstrated his ability as a speaker. 
Indeed, he had not been long in Illinois before 
he had talked down one local orator; and as the 
general store was the accepted meeting-place 
and center of public opinion in New Salem, he 
had unbounded opportunity to exercise his un- 
doubted "gift of gab." 

It is not probable that the embryo lawyer ob- 
tained much information from the legal lumi- 
naries of New Salem, but he attended most of 
the trials conducted by Bowling Green, the local 
justice of the peace, who is said to have decided 
a hog case known as Ferguson v. Kelso by de- 
claring that the plaintiff's witnesses were 
"damned liars, the court being well acquainted 
with the shoat in question, and knowing it to be- 
long to Jack Kelso." This and other similar 
exhibitions of judicial temperament were pos- 
sibly responsible for Lincoln's first bill in the 
legislature, which was a measure to restrict the 

29 



LINCOLN THE LAWYER 

jurisdiction of justices of the peace. It could 
not have been aimed directly at Bowling Green, 1 
however, for he and Lincoln were fast friends, 
and long before the young student was admitted 
to the bar he was allowed to practise in an infor- 
mal way before the eccentric justice. 

Springfield was only a few miles from New 
Salem and there is every reason to believe that 
Lincoln attended the sessions of the circuit 



/p MaTU^ ^t^^zy 

AUTOGRAPH OF BOWLING GREEN 



court at the county-seat; but whatever else he 
may have done at this time with the definite pur- 
pose of preparing himself for his future calling, 
he was unquestionably developing those traits 
of character which distinguish really great law- 
yers from those who are merely successful. 

1 The biographies give several different spellings of the judge's 
name, and in them he figures as Bowlin and Bowline as well as 
Bowling Green. The writer has, however, examined documents on 
file in the Illinois courts signed by the justice, who spelled his name 
as it appears in the text. 

30 




LEGAL APPRENTICESHIP 

It is a significant fact that in a community 
where crime was virtually unknown, where plain, 
straightforward dealing was assumed as a mat- 
ter of course, and credit was fearlessly asked 
and given, Lincoln won an enviable reputation 
for integrity and honor. In a moral atmo- 
sphere of this sort ordinary veracity and fairness 
attracted no particular attention. Honesty was 
not merely the best policy ; it was the rule of life, 
and people were expected to be upright and 
just with one another. But when a clerk in a 
country store walked miles to deliver a few 
ounces of tea innocently withheld from a cus- 
tomer by an error in the scales, and when he 
made a long, hard trip in order to return a few 
cents accidentally overpaid him, he was talked 
about, and the fact is that "honest Abe" was a 
tribute, not a nickname. 

To suggest that inflexible integrity is indis- 
pensable to the make-up of a great lawyer is, of 
course, to challenge the sneer or the smile of the 
cynically minded. The jests about honest law- 
yers have become classic, and they will forever 
continue to delight. Yet, despite the humorist 
and the cynic, there is probably no profession in 
the world which makes greater demands upon 

31 



LINCOLN THE LAWYER 

integrity, or presents nicer questions of honor, 
or offers wider opportunities for fairness, than 
the profession of the law. The fact that many 
distinguished practitioners have not maintained 
the highest standards of the calling, that most 
of them have compromised for monetary or mo- 
mentary success, that a few have actually abused 
their great opportunities, does not in the least 
impeach the proposition that extraordinary in- 
tegrity, honor, and fairness are the essential 
qualities of a great lawyer. It merely demon- 
strates how rare great lawyers are. 

Of course it does not follow that because a 
lawyer is a good, or even a great, man, he must 
be a great, or even a good, lawyer. But one 
thing is certain : no man deserves to be classed as 
a great lawyer who does not fairly exemplify the 
noblest aspirations of his calling. If the number 
of litigations in which a lawyer has been engaged 
be the true test of professional eminence, some of 
the modern "negligence attorneys" must be ad- 
mitted to the highest station ; if the monetary im- 
portance of their clientage is to count, the legal 
guardians of great corporate interests must out- 
rank all who have gone before; if success in the 

32 



LEGAL APPRENTICESHIP 

courts is the criterion, Aaron Burr must have 
first honors, for he never lost a case. 

But if loftier considerations enter into the 
question of what constitutes a really great law- 
yer, — if it is right to demand something nobler 
than advocacy, something broader than com- 
mercial aptitude, something more influential 
than erudition and more enduring than success, 
—then it is proper to insist on personal character 
as one of the elements that determine the just 
rank of any member of the profession. 

No man ever believed in his calling more 
thoroughly than Lincoln, and he had no patience 
with the much-mouthed charge that honesty was 
not compatible with its practice. 

"Let no young man choosing the law for a 
calling yield to that popular belief" he wrote. 
"If j in your judgment, you cannot be an honest 
lawyer, resolve to be honest without being a 
lawyer. Choose some other occupation rather 
than one in the choosing of which you do, in ad- 
vance, consent to be a knave" 

If the writer of those lines abated anything 
of his boyish integrity under the stress of the 
workaday duties of the law, his theories in regard 

83 



LINCOLN THE LAWYER 

to its practice are neither interesting nor instruc- 
tive. But if he lived them out and proved them 
practical, they are of the first importance, and 
they have a direct bearing upon his much-dis- 
puted place in the profession. 

In either event, however, it is fair to test Lin- 
coln the lawyer by his own standards; to inquire 
whether his conduct as a member of the bar con- 
formed to the reputation which he earned as a 
clerk in Offutt's store; to compare his profes- 
sional ethics with his private principles ; to ascer- 
tain whether he compromised with his conscience 
in the interests of his clients, and to judge his 
legal career accordingly. 



34 



LINCOLN S FIRST ARGUMENT AND HIS EARLY 
ATTITUDE TOWARD THE LAW 

1INCOLN never sought to make himself a 
-■ general favorite, and yet he had not been 
long in New Salem before he was the most popu- 
lar man in the town. Doubtless he possessed, even 
in those early years, that power of personal mag- 
netism which he afterward exerted so command- 
ingly in the courts and upon all sorts and condi- 
tions of men. But it is not necessary to insist 
upon this to explain his immediate favor with 
the New Salemites. He could tell a good story, 
make a creditable stump-speech, give an excel- 
lent account of himself in contests of strength, 
and hold his own against all comers in the daily 
debates at the village forum. Moreover, he lis- 
tened attentively when other people talked, never 
boasted of his physical prowess, and was tol- 
erant of all intelligent opinion. His extreme 

35 



LINCOLN THE LAWYER 

popularity with men of his own age is particu- 
larly remarkable, however, when we remember 
that he neither drank nor smoked; for young 
men are apt to regard the use of tobacco and sti- 
mulants as essential to good-fellowship and manly 
camaraderie, and this was especially true of the 
settler days. Lincoln was not, however, a total 
abstainer in any strict sense of the words. He 
did not drink intoxicants because he did not like 
them, and he did not smoke for a similar reason. 
Judge Douglass once undertook to ridicule 
him on this subject. 

"What! Are you a temperance man?" he in- 
quired sneeringly. 

"No," drawled Lincoln, with a smile, "I'm not 
a temperance man, but I'm temperate in this, to 
wit, — I don't drink." 1 

With his elders the young storekeeper found 
favor for a variety of reasons. They soon dis- 
covered that he knew more than any of them, 
but never presumed upon it; that he was genial 
and obliging, always ready to lend a hand at 

1 This conversation occurred in the presence of Judge Lawrence 
Weldon, who repeated it in an interview with the writer. Judge 
Weldon was the last surviving lawyer who traveled the circuit with 
Lincoln. [See Foreword.] He died in the spring of 1905, after a 
long and useful career on the bench of the United States Court of 
Claims in Washington. 

36 




From a photograph by Rice 

Judge Lawrence Weldon 



EARLY APTITUDES 

anything, from roofing a barn to rocking a baby ; 
and that he was as reliable in business matters 
as he was in neighborly deeds and kindnesses. 

But perhaps his most winning quality with 
young and old alike was his sincere belief in his 
fellow-townsmen and their community. Local 
pride never had a more buoyant champion than 
he. For him Sangamon County in general and 
New Salem in particular, was the promised land, 
and he was confident that the people were equal 
to the task of developing it according to its needs. 
Thus when it was first suggested that the shal- 
low, snag-bound Sangamon River was navigable 
and might be made a great highway of com- 
merce, he eagerly championed the theory and 
worked with voice, pen, and hand to realize a 
practical result. The Sangamon is still unnav- 
igable and New Salem has disappeared, but Lin- 
coln's plea for improving the waterway remains 
as evidence of his sincere belief in the future of 
the community and to show us what he could do 
with a weak cause at the age of twenty-one. 

The argument is not remarkable, but it is ex- 
ceedingly interesting and suggestive. Although 
he was young and boyishly enthusiastic, Lincoln 
did not overstate the possibilities nor underesti- 

39 



LINCOLN THE LAWYER 

mate the difficulties of his case; and despite the 
really laughable attempt which was afterward 
made to force the passage of the Sangamon, 
there is nothing ludicrous in his plea. What 
he claimed sounds reasonable, and what he hoped 
for possible even in the face of failure. 

This early effort plainly indicates Lincoln's 
natural aptitude for logical statement. But it 
does more than that. It displays a trait which 
few lawyers possess; for the ability to present 
facts clearly, concisely, and effectively without 
taking undue advantage of them is a rare legal 
quality. It requires not only ability but courage ; 
not only tact, but character. It is one of the in- 
fallible tests which distinguish the legal bravo 
from the jurist, and it will be demonstrated in a 
future chapter that Lincoln fulfilled it in mas- 
terful fashion. 

It was in a circular announcing himself a can- 
didate for the State legislature that this Sanga- 
mon River argument appeared; for Lincoln, en- 
couraged by the good will of his New Salem 
friends, had decided to make trial of his political 
fortunes. There was, therefore, a double tempta- 
tion to indulge in extravagant promises and 
prophecies. lie believed in his cause and he 

40 



EARLY APTITUDES 

wanted to please his constituents, and yet there is 
not a word of exaggeration in the entire address. 
It is quiet, frank, earnest, and simple. 

This circular is important in the history of 
Lincoln's professional career not only because 
it contains his first argument, but also because 
it records his earliest public comment upon law. 
The evils of usury had been widely discussed 
throughout the State of Illinois for some time; 
and as there was a radical difference of opinion 
concerning the remedy, each candidate was ex- 
pected to express his views upon the much- 
mooted question. Exorbitant interest was impov- 
erishing borrowers, but it was feared that strin- 
gent laws might drive capital altogether out of 
the country and arrest its development. Lincoln 
announced himself as favoring a strict law on the 
subject, despite the objection that a high rate 
of interest might be preferable, in many cases, to 
no loan at all, and his answer to this has served 
to shock more than one of his biographers. 

"In cases of extreme necessity," he wrote, 
"there could always be means found to cheat the 
law; while in all other cases it would have its in- 
tended effect. I would favor the passage of a 
law on this subject which might not be very easily 

41 



LINCOLN THE LAWYER 

evaded. Let it be such that the labor and diffi- 
culty of evading it could only be justified in 
cases of greatest need." 1 

This temperate announcement seems very re- 
grettable to certain estimable historians, who pull 
a long face and record their surprise at words 
which, as one of them puts it, "sound strange 
enough from a man who in later life showed so 
profound a reverence for law." 

But the immature Lincoln was wiser and more 
broad-minded than his disapproving admirers. 
He knew that the enforcement of any law de- 
pends entirely upon public opinion, and he was 
not afraid to admit that evasions of the law were 
possible and, under certain circumstances, per- 
missible. There was no sham or pretense or 
hide-bound reverence for law as law in his mental 
make-up. He believed in its spirit and not in its 
letter. It is the Shylocks and not the Lincolns 
who pose as the champions of statutes and de- 
mand their strict interpretation. 

But the high-minded commentators who cen- 
sure Lincoln's attitude in this matter might have 
found further evidence of youthful indiscretion 

1 The circular containing this statement and the Sangamon River 
argument was issued in March, 1832. 

42 



EARLY APTITUDES 

in this circular, where its author discusses the 
advisability of a proposed revision of all the 
State laws. 

"Considering the great probability that the 
framers of those laws were wiser than myself," 
he naively remarks, "I should prefer not med- 
dling with them unless they were attacked by 
others ; in which case I should feel it both a privi- 
lege and a duty to take that stand which, in my 
view, might tend most to the advancement of 
justice." 

Could not this be twisted into an assertion that 
he might, under certain circumstances, side with 
those who assailed the laws? A deplorably anar- 
chical statement if law be superior to justice. 
But it is precisely because Lincoln never acted 
upon any such theory that his legal career is 
noteworthy and exceptional. He never surren- 
dered his conscience to a code; his sense of jus- 
tice was never cowed by the tyranny of "leading 
cases"; and the decision of the highest court in 
the world never succeeded in convincing him that 
wrong was right. 

His attitude on this subject was fully ex- 
plained a few years later, in an address delivered 
before the Young Men's Lyceum at Springfield, 

43 



LINCOLN THE LAWYER 

when, after urging that reverence for the law 
should be "the political religion of the nation/' 
he defined his position in these strangely pro- 
phetic words: 

"But when I so pressingly urge a strict ob- 
servance of all laws, let me not be understood as 
saying that there are no bad laws, or that griev- 
ances may not arise for the redress of which no 
legal provisions have been made. I mean to say 
no such thing. But I do mean to say that al- 
though bad laws, if they exist, should be re- 
pealed as soon as possible, still while they con- 
tinue in force, for the sake of example, they 
should be religiously observed. In any case that 
may arise, as, for instance, the promulgation of 
abolitionism, 1 one of two propositions is neces- 
sarily true; — that is, the thing is right within 
itself and therefore deserves the protection of 
all law and all good citizens — or it is wrong and 
therefore proper to be prohibited by legal enact- 
ments; and in neither case is the interposition of 
mob law either necessary, justifiable, or excus- 
able." 

These wonderfully significant sentences were 

1 The italics are the author's. This speech was delivered 
January 27, 1837. 

44 



EARLY APTITUDES 

penned before Lincoln had reached his maturity, 
before he had actively entered on the practice of 
the law, before the Fugitive Slave Law was an 
issue, and long before the Dred Scott case was 
dreamed of. 

We shall have occasion to see that his theories 
were tested in the most practical manner by the 
very situation which he invoked as illustration, 
and to note, in his professional attitude, a mas- 
terful distinction between bowing to legal au- 
thority and submitting tamely to its decrees. 



4.5 



VI 



LINCOLN THE LAW STUDENT 

THE quality of the talk which passed over 
the counters of OfFutt's store was j^robably 
superior to the quality of its merchandise, for, 
despite the remarkable popularity of the sales- 
man, the business dwindled until it finally 
"winked out," as Lincoln said of one of his later 
ventures. 

At this crisis, however, an event occurred 
which set all the country talking, and the passing 
of the village emporium was scarcely noticed. 
Black Hawk, an Indian chief, was reported to 
be on the war-path, and the governor of the 
State hastily called for volunteers. Lincoln 
instantly responded, and was subsequently 
elected captain of his company — a success which, 
he declared, gave him more pleasure than any of 
the honors which afterward fell to his lot. 

The so-called Black Hawk War lasted only a 
46 



THE LAW STUDENT 

few weeks. It was in many ways a ridiculous, 
if not contemptible affair, and Lincoln did not 
reach the front until it was virtually over. His 
company was disbanded shortly after it was 
formed, but he reenlisted as a private for the 
remainder of the campaign, and was finally mus- 
tered out by a young lieutenant of the regular 
army whom he was destined to meet again under 
more dramatic auspices — Major Robert Ander- 
son, the commander of Fort Sumter. 

It was characteristic of the man that at a time 
when military titles were the fashion Lincoln 
did not retain his, and never would permit any 
one to address him as captain. Indeed, years 
afterward, when congressmen attempted to 
make political capital for General Cass out of 
that gentleman's not too distinguished record in 
the War of 1812, he disposed of the pretensions 
with a laugh at his own military history. 

"By the way, Mr. Speaker," he began with 
deep gravity, "did you know that I was a military 
hero? Yes, sir. In the days of the Black Hawk 
War I fought, bled, and came away. . . I was 
not at Stillman's defeat, but I was about as near 
to it as Cass was to Hull's surrender, and, like 
him, I saw the place very soon afterward. . . . 

47 



LINCOLN THE LAWYER 

If General Cass went in advance of me in pick- 
ing huckleberries, I guess I surpassed him in 
charges upon the wild onions. If he saw any 
live, fighting Indians, it was more than I did; 
but I had a good many bloody struggles with the 
mosquitos. Mr. Speaker, if I should ever con- 
clude to doff whatever our Democratic friends 
may suppose there is of black-cockade Feder- 
alism about me, and thereupon they shall take me 
up as their candidate for the Presidency, I pro- 
test they shall not make fun of me, as they have 
of General Cass, by attempting to write me into 
a military hero." 1 

Farcical as this campaign was, it had, never- 
theless, an important bearing on Lincoln's pro- 
fessional career ; for it brought him to the notice 
of his future law partner, Major John T. Stuart, 
one of the Springfield volunteers, and it was the 
major's friendly advice and use of his small 
law library which encouraged the ex-clerk to pur- 
sue his legal studies. 

The political canvass in Illinois was almost 
over when the "veteran" of the Black Hawk 
War returned to New Salem; but there was still 
time to make a few speeches in aid of his candi- 

1 Congressional Record of July 27, 1848. 

48 



THE LAW STUDENT 

dacy for the State legislature, and he threw him- 
self into the contest with vigor and spirit. When 
the votes were counted, however, he found him- 
self rejected — the first and only time he was ever 
defeated by direct popular vote. 

But Lincoln had stated in the circular announc- 
ing his candidacy that if the people should see 
fit to keep him in the background, he was too 
familiar with disappointments to be very much 
chagrined, and there is no indication that he was 
particularly discouraged at the result, although 
it compelled him to seek immediate emploj^ment, 
and interfered to that extent with his prepara- 
tion for the bar. He had to earn his living, but 
if he could find work which would allow him 
some leisure for study, he did not care much what 
it was and when a dissolute fellow named Berry, 
who had purchased an interest in a grocery-store, 
proposed a partnership, Off utt's ex-clerk grasped 
the opportunity. 

A more ill-assorted couple than Berry and 
Lincoln it would be difficult to imagine but their 
ideas of the partnership were mutually satisfac- 
tory. The senior partner drank up all the profits 
of the business, and the junior member devoted 
himself to the study of law. As might be ex- 

49 



LINCOLN THE LAWYER 

pected, this division of the labors and responsi- 
bilities of shopkeeping was not highly remunera- 
tive, and Lincoln afterward remarked that the 
best stroke of business he ever did in the grocery 
line was when he bought an old barrel from an 
immigrant for fifty cents and discovered under 
some rubbish at the bottom a complete set of 
Blackstone's Commentaries. That was a red-let- 
ter day in his life, and we have his own word for 
it that he literally devoured the volumes. They 
must, indeed, have been refreshing after the 
dry Indiana statutes; and if Lincoln's choice of 
a profession must be attributed to a law-book, 
no more plausible selection than Blackstone's 
Commentaries could possibly be made. 

Berry & Lincoln virtually lived on their stock 
of merchandise, Berry drinking and Lincoln 
eating it up, and matters soon reached a crisis 
which drove the junior partner into the fields 
again, where he undertook all sorts of rough 
farm labor, from splitting rails to plowing. As a 
man-of-all-work, however, Lincoln did not prove 
altogether satisfactory to his employers. He 
was too fond of mounting stumps in the field 
and "practising polemics" on the other farm- 
hands, and there was something uncomfortable 

50 



THE LAW STUDENT 

about a plowman who read as he followed the 
team, no matter how straight his furrows ran. 
Such practices were irritating, if not presump- 
tuous, and there is a well-known story about a 
farmer who found "the hired man" lying in a 
field beside the road, dressed in his not too 
immaculate farm clothes, with a book instead of 
a pitchfork in his hand. 

"What are you reading?" inquired the old 
gentleman. 

"I'm not reading; I'm studying," answered 
Lincoln, his wonderful eyes still on the pages of 
his book. 

"Studying what?" 

"Law, sir." 

The old man stared at the speaker for a 
moment in utter amazement. 

"Great — God — Almighty!" he muttered as he 
passed on, shaking his head. 

But even with odd jobs and the postmaster- 
ship of New Salem, 1 Lincoln could scarcely 
make ends meet, and he was glad to receive the 
appointment of deputy to Calhoun, the county 

1 This appointment, "too insignificant to make politics an ob- 
jection," was received in May, 1838, from the Jackson administra- 
tion, and it was the only Federal patronage which Lincoln ever 
enjoyed. 

51 



LINCOLN THE LAWYER 

surveyor. He was sorely in need of the salary, 
but he would not accept the office under any 
misunderstanding. With characteristic frank- 
ness he admitted that he knew nothing* about sur- 
veying, and explained that he was not of his 
employer's political faith. Being assured, how- 
ever, that his politics made no difference, he 
applied himself to the study of surveying, and so 
well did he qualify himself for the work that 
none of his surveys was ever questioned, and 
the information he acquired stood him in good 
stead when he came to practice law. One of his 
legal opinions on a question of surveying is in 
existence to-day. 

Meanwhile what remained of the grocery busi- 
ness was sold on credit. The purchasers 
defaulted, and Berry died, leaving his partner to 
shoulder all the not inconsiderable debts. 

Credit in those days was freely extended, and 
it was not considered dishonorable to evade the 
payment of claims which passed into the hands 
of speculators. Berry & Lincoln had obtained 
very little when they purchased the grocery, 
and the sellers probably parted with the firm's 
notes for a small fraction of their face value. 
The men who bought paper of that sort usually 
sold it again at the first opportunity or traded it 

52 



7usv V i<&^~,. #f <?t^Lf&~u~z: yOi^T erf /&& 

JL+jli fLzzzhe^j yCf^i^ <*$u*<r j£*~-* ,/^ty ^ /&*** car ttzy 

«^>w*</ ,^» /£¥£*£ j£z«*s; >W £s&>u/k /t^fuv £*Z~, fi*^&j f^v 
c4u*s\~06+~-r, ^~*® fii^A^CZZ, flsv~y /i^/fcuviv ^Za-oC^j^ &v&?e-<s^ 

fftZ^^pA> /lPtZ* W^csCl*— ' '&>??»"' j&& trffUr*-^ c^^u^Z^ ^-<^C^j 
CSPn*^,, f^i^fl /&£ f<ryZ£ /^rfe^, jfr^^C /2^w^Z^,^>^wj 

A legal opinion from Lincoln on a question of surveying 




LINCOLN THE LAWYER 

off for something else, and thus it passed from 
hand to hand until some speculator who had ob- 
tained it for nothing or next to nothing appeared 
and demanded the uttermost farthing. Naturally, 
this dubious business encouraged evasion of 
the debts, and public opinion countenanced 
the repudiations. But to Lincoln a promise 
was a promise, and although the action of one of 
the parties who had acquired his and Berry's 
notes was particularly contemptible, he stooped 
to neither compromise nor evasion. Little by 
little he reduced the claims, and fourteen years 
afterward he devoted part of his salary as con- 
gressman to this purpose, and finally extin- 
guished what he jestingly termed his "national 
debt." 

In these days, when lawyers of high standing 
lend themselves to the thousand and one trick- 
eries by which bankruptcy has become a new way 
to pay old debts, when influential firms accept 
retainers from insolvent clients who retain their 
memberships in fashionable clubs, and manag- 
ing clerks are encouraged to make "affidavits of 
merit" on behalf of such gentry, it is refreshing 
to think of the struggling Illinois law student 
who refused to take advantage of the law. 

54 



THE LAW STUDENT 

This episode would be of merely passing inter- 
est did it not foreshadow Lincoln's conduct when 
face to face with the countless temptations and 
sophistries of the profession. It is important 
solely because it is illustrative and characteristic 
of his entire legal career, and it will be seen that he 
never consented to do anything in a representa- 
tive capacity which he would not countenance 
in himself as an individual, that he maintained the 
ideals of advocacy in his daily contact with the 
legal world, and made no sacrifice of private 
principles in his long and active experience. In 
a word, he proved the ideals of his profession to 
be practical. Had he no other claim to recogni- 
tion, that service alone should entitle him to the 
thanks of every honest member of his profession, 
and to far higher standing than that assigned to 
many acknowledged leaders of the bar. It will 
be demonstrated, however, that honor and in- 
tegrity were not the only rare legal qualities 
which distinguished Lincoln the lawyer in his 
three-and-twenty years of practice. 



55 



VII 

ADMISSION TO THE BAR. THE PRIMITIVE 
BENCH AND BAR OF ILLINOIS 

HIS duties as surveyor carried Lincoln to all 
parts of Sangamon County and widened 
his acquaintance until, in 1834, he felt himself 
strong enough to make another canvass for the 
legislature. This time he was successful beyond 
his hopes, securing more votes than any other can- 
didate save one; and some idea of the esteem in 
which his neighbors held him may be gathered 
from the result in New Salem, where he received 
208 out of the 211 ballots cast, a tribute which 
proves that a man is sometimes a prophet even 
in his own country. 

The duties of a State legislator in those days 
were even less confining than they are now, and 
although the remuneration was small, it enabled 
Lincoln to drop his surveying work and devote 

56 



ADMISSION TO THE BAR 

his entire leisure to the law. He had already 
begun to practise in an apprentice way, occasion- 
ally drawing* deeds and bills of sale for his neigh- 
bors and "pettifogging" before Justice Bowling 
Green: and biographers, better acquainted with 
literary values than with law, have seized upon the 
fact that he was not paid for this work to illustrate 
his generosity and helpfulness. One of the 
recent histories states that, "poor as he was, he 
never accepted a fee for such services, because 
he felt that he was fully paid by the expe- 
rience." 

Probably it more than paid him, but in view of 
the Illinois law which imposes a heavy penalty 
on unlicensed persons who accept compensation 
for attorney work, and in the light of similar 
provisions in the Indiana Revised Statutes, which 
Lincoln is supposed to have memorized, chapter, 
page and verse, the attempt to praise his for- 
bearance makes a ludicrous virtue of necessity. 1 
Lincoln, it will be remembered, protested that no 
pseudo-partizans of his should ever make fun of 

i The Indiana statute forbidding unlicensed persons to practise 
law under penalties is contained in the Revision of 1824, under 
chap, viii, sec. 9, and in the Revision of '31, on p. 86. 

The Illinois law, in substantially the same language used in the 
Indiana statute, is set forth in the Revision of 1833, at p. 102, 
and in the Revision of '45, in chap, xi, seen, p. 74. 

57 



LINCOLN THE LAWYER 

him by trying to write him into a military hero; 
but he could not protect himself on every side, 
and his friends, the eulogists, have certainly done 
their best to make him ridiculous. 

At the next election the young law student 
was again a candidate for the legislature, and his 
friends were so anxious for his success that they 
raised two hundred dollars to defray the expenses 
of a thorough canvass. He was triumphantly 
elected at the head of the poll, and returned one 
hundred and ninety-nine dollars and twenty-five 
cents of the campaign fund, stating to the sub- 
scribers that his total outlay had been only sev- 
enty-five cents. His plurality at this election 
was even more a personal tribute than the vote 
of the previous year, for his services during his 
first term in the legislature had not been remark- 
able. Indeed, there is nothing particularly note- 
worthy in his legislative record from beginning 
to end, except as it illustrates his growing polit- 
ical sagacity and genius for leadership. 

It was at the close of his second term in March, 
1837, that he moved to Springfield. He was 
then in his twenty-ninth year, vigorous in body, 
serious-minded, and developing intellectually 
with every fresh mental impulse. He arrived at 

58 



ADMISSION TO THE BAR 

the new State capital 1 without money and with 
no baggage to speak of, but soon found himself 
among friends. Joshua Speed, a prosperous 
merchant, offered to share his lodging with the 
embryo lawyer, and w r as promptly taken at his 
word. 

This arrangement was merely temporary, for 
a few days later Major Stuart, in whose office 
Lincoln had served an informal legal appren- 
ticeship, offered him a partnership, and the firm 
of Stuart & Lincoln entered on the practice of 
law, the junior partner, for a time, literally living 
in the office. 

It is improbable that Lincoln was obliged to 
pass any examination for admission to the bar. 
Certainly there is no record of any such for- 
mality, and the existing statutes did not, in ex- 
press terms, provide for it. There was, however, a 
provision which permitted attorneys from other 
States to be licensed without examination, which 
suggests that native candidates may have been 
subjected to some sort of mental test 2 . Cer- 
tainly ten or fifteen years later, Lincoln himself 

1 Vandalia was the former capital. It was changed to Spring- 
field largely through Lincoln's efforts. 

2 Rule XXX of the Illinois Supreme Court, adopted March l, 
1841, about five years after Lincoln was admitted, provided that 
all applicants for a license to practise law be required to present 

59 



LINCOLN THE LAWYER 

was appointed by the court to examine appli- 
cants; but the requirements, even at that date, 
were not very severe, and about the most impor- 
tant question which a novitiate had to answer was 
what he proposed to do for the bar in the way of 
an initiatory "treat," and this took every form, 
from a dinner to drinks all around. 1 

The date of Lincoln's admission to the bar has 
been so frequently misstated that it may be well 
to give the record in full. It is contained in 
Record C of the Circuit Court of Sangamon 
County, on page 173, where, under the date of 
March 24, 1836, the Hon. Stephen T. Logan 
presiding, "it is ordered by the court that it be 
certified that Abraham Lincoln is a person of 
good moral character," and the clerk's minutes 
of the same term of court contain the following 
entry: "Ordered that it be certified to all whom 
it may concern that Abraham Lincoln is a man 

themselves in person for examination in open court. At the 
July term of the same year, however, this rule was bitterly at- 
tacked by old Judge Ford, who did not believe in restricting the 
membership of the bar, and the rule above quoted was rescinded, 
despite the objections of Justices Treat and Douglas, who re- 
corded their dissent from the order of rescission. 

1 Judge R. M. Benjamin, of Bloomington, Illinois, is probably 
the only lawyer now living whom Lincoln examined for admission 
to the bar. In an interview with the writer the judge described 
the proceedings as being extremely informal, but stated that Mr, 
Lincoln did not suggest to him any "initiation." 

60 



ADMISSION TO THE BAR 

of good moral character." * His name, however, 
does not appear on the roll of attorneys until 
September 9, 1836, and this was not published in 
the reports until March, 1837, which has led to 
much confusion, and conflicting statements in 
the biographies. There is no doubt, however, 
that he was legally qualified on March 24, 183G, 
and his professional life properly dates from 
that day. 

Illinois was only just emerging from the con- 
dition of a frontier State in 1836, and all depart- 
ments of the government were still very simply 
administered. The judges were, in some respects, 
superior to their brethren of Indiana, but they 
were not overburdened with learning, and al- 
though Governor Ford's "History of Early 
Illinois" records the names of half a dozen attor- 
neys of reputed ability and scholarship, it is 
doubtful if the rank and file of the primitive bar 

1 Such orders were usually made on the recommendation of one 
or more persons, who signed a paper certifying to the court that 
the applicant was of good moral character. If this was done in 
Lincoln's case, it would be interesting to know who signed his 
certificate; but after an exhaustive search in the Circuit and 
Supreme Court records in Springfield the writer has been unable to 
find any of the original papers touching Lincoln's admission to 
the bar; and, from the neglected condition of other documents 
in these courts of about the same date, he is of the opinion 
that these historical papers have been lost or destroyed. 

61 



LINCOLN THE LAWYER 

knew much more law than laymen of equal 
intelligence. 

Most of the Illinois court-houses were log-built, 
as in Indiana, but in some districts the sessions 
were held in the bar-rooms of taverns, and the ab- 
sence of all formality in the proceedings is best 
illustrated by the fact that in the Circuit Court of 
Washington County, held by Judge John Rey- 
nolds, the sheriff usually heralded his Honor by 
singing out: "Come in, boys! Our John is 
a-goin' to hold court!" to which cordial invi- 
tation those having business with the law re- 
sponded. 

Another sheriff in Union County made a laud- 
able efforts to meet the requirements of the occa- 
sion by shouting this singular announcement: 

"O, yes! O, yes! O, yes! The honorable judge 
is now opened!" 

Both the bench and the bar had become com- 
paratively dignified by the time Lincoln was 
admitted to practise; but Governor Ford, writ- 
ing at a much later day, expressed a fine scorn of 
all formalities, and his comments indicate that 
the Illinois courts were not offensively ceremo- 
nious even in the fifties. 

"In some countries," he complacently observes, 

62 




From a portrait owned by the Illinois Historical Society 

Judge John Reynolds 
A typical judge of the primitive Illinois courts 



PRIMITIVE ILLINOIS COURTS 

"the people are so ignorant or stupid that they 
have to be humbugged into a respect for the 
institutions and tribunals of the State. The 
judges and lawyers wear robes and gowns and 
wigs, and appear with all 'the excellent gravity' 
described by Lord Coke. Wherever means like 
these are really necessary to give authority to 
government, it would seem that the bulk of the 
people must be in a semi-barbarous state at 
least." 

There was certainly nothing barbarous about 
the administration of the criminal law in Illinois 
before that State became what we call civilized. 
Indeed, the judges were humane to a fault, and 
whenever it became necessary for them to sen- 
tence a prisoner, they were careful to state that 
they were but the humble agencies of justice. 
Possibly this extreme modesty reflected a whole- 
some self -depreciation, but there is just a chance 
that it evidenced a live regard for their own per- 
sonal safety. In any event, it is a fact that the 
judiciary assumed no unnecessary responsibility. 
In the case of the People vs. Green the jury con- 
victed the defendant of murder, and the learned 
judge, — later a governor of the State, — was ob- 
liged to pronounce the death-sentence. 

65 



LINCOLN THE LAWYER 

"Mr. Green," he began, addressing the pris- 
oner, "the jury in their verdict say you are guilty 
of murder, and the law says you are to be hung. 
Now I want you and all your friends down on 
Indian Creek to know that it is not I who con- 
demn you, but the jury and the law. Mr. Green, 
the law allows you time for preparation, so the 
Court wants to know what time you would like 
to be hung." 

The prisoner "allowed" it made no difference 
to him, but his Honor did not appreciate this 
freedom of action. 

"Mr. Green, you must know it is a very serious 
matter to be hung," he protested uneasily. 
"You 'd better take all the time you can get. 
The Court will give you until this day four 
weeks," he added tentatively. 

The prisoner made no response, but Mr. James 
Turney, the prosecutor, apparently thinking the 
scene lacked impressiveness, rose and addressed 
the bench. 

"May it please the court," he began, "on sol- 
emn occasions like the present it is usual for the 
Court to pronounce formal sentence, in which the 
leading features of the crime shall be brought 
to the recollection of the prisoner, and a sense of 

66 



PRIMITIVE ILLINOIS COURTS 

guilt impressed upon his conscience, and in which 
he shall be duly exhorted to repentance and 
warned against the judgment in a world to 
come." 

"Oh, Mr. Turney," the judge interrupted tes- 
tily, "Mr. Green understands the whole matter as 
well as if I had preached to him a month. He 
knows he 's got to be hung this day four weeks. 
You understand it that way, Mr. Green, don't 
you?" he added, appealing to the prisoner. 

"Mr." Green nodded, and the court adjourned. 

Now it may be that this cautious magistrate 
had too much consideration for the prisoner's 
sensitive friends on Indian Creek, but our 
modern jurists, who admittedly have the courage 
of their convictions, might take a useful hint 
from his reticence, for if criminals derive any 
benefit from judicial lectures or warnings, the 
evidence of that fact has not yet been forthcom- 
ing. 

But the pioneer judges were prudent in civil 
as well as in criminal cases. They never 
instructed the jurors on the legal effect of testi- 
mony, and rarely told them what they could or 
could not find from the facts. Occasionally, 
however, some Solon, bolder than his fellows, 

67 



LINCOLN THE LAWYER 

would depart from this noncommittal practice, 
with results not always satisfactory. In one case 
a judge who desired to display his learning 
instructed the jury very fully, laying down the 
law with didactic authority; but the jurors, after 
deliberating some hours, were unable to agree. 
Finally the foreman rose and asked for addi- 
tional instructions. 

"Judge, this 'ere is the difficulty," he explained. 
"The jury want to know if that thar what you 
told us was r'al'y the law, or ony jist your 
notion." 

These frontier proceedings were undoubtedly 
crude, but they reflected the common sense of the 
people, and it is fairly debatable whether the 
modern practice displays any marked advan- 
tage over the primitive methods. Certainly 
every legal appeal of to-day echoes the fore- 
man's question, and only too frequently the high- 
est tribunals inform us, after years of waiting, 
that what we received from the court below was 
not really the law, but "on'y jist the notion" of a 
trial judge. 

Picturesque as was this old regime, and prac- 
tical as it was for pioneer conditions, it speedily 
yielded to the march of progress, and when Lin- 

68 



PRIMITIVE ILLINOIS COURTS 

coin joined the ranks of the profession it had 
virtually disappeared. Already the log court- 
houses had given way to frame-buildings 1 and 
structures of brick, and the steadily increasing 
immigration was bringing legal talent of a 
higher order than the State had ever known. A 
new generation of judges and lawyers was soon 
to control the administration of justice, and 
before many years the local bar of Springfield 
was to produce jurists and statesmen of national 
repute. 

i It has frequently been stated that Lincoln practised in some 
of the old log court-houses, but from his personal investigations 
in the judicial districts about Springfield, the writer is of the 
opinion that all the courts which Lincoln attended during his 
early practice were housed in comparatively modern buildings. 



69 



VIII 



Lincoln's first partnership 



11/rAJOR STUART, with whom Lincoln 
-A-^A had joined forces, was not, in his 
early years, a well-read or even an indus- 
trious lawyer, but he was popular and had 
an extensive, if not very lucrative, practice, 
which he was entirely willing to intrust to 
his new associate. Indeed when the firm was 
formed he was so deeply engrossed in politics 
that he gave little or no attention to the law, and 
Lincoln had to assume virtually all responsibility 
for the business. 

Of course, if the procedure had been compli- 
cated or technical, a novice would have speedily 
come to grief ; but the character of litigation was 
very simple in those days, the precedents were 
few and far between, and the local forms exceed- 
ing elastic. Lincoln met such difficulties as 
there were in his own way, asking as little advice 
as possible and exercising his ingenuity to bridge 

70 




Hon. John T. Stuart 



FIRST PARTNERSHIP 

the gaps in his information when his partner 
was not available for consultation. The habit of 
standing on his own feet and doing his own 
thinking, which was thus forced upon him at the 
very outset of his practice, became his most no- 
table trait. One of his contemporaries closely in 
touch with his professional life testifies that he 
never asked another lawyer's advice on any sub- 
ject whatsoever. He listened to his associates 
and consulted with them, but he worked out his 
own problems, and there was never anything of 
the ''brain-tapper" about his relations with the 
bar. 

The influence of this early training is plainly 
discernible in the remarkable self-reliance and 
resourcefulness which he exhibited in his later 
years. New questions did not confuse him; he 
faced emergencies with perfect serenity, and he 
had long been accustomed to responsibility when 
he was called upon to decide questions of national 
import. 

Springfield, the new capital of Illinois, was a 
mere village when Stuart & Lincoln hung out 
their shingle. The state-house had not been 
built, the sessions of the legislature were held 
in a church, and the houses were scattered 

73 



LINCOLN THE LAWYER 

and poorly constructed. The business centered 
around a vacant plot of ground which passed for 




Office of Stuart & Lincoln as it is to-day 1 

a public square, and many of the lawyers' offices 
were "in their hats." 

Lincoln's partner, however, was a person of 

1 This is No. 109 North Fifth street, the only surviving section of 
the old "Hoffman Row, v on the second floor of which Stuart & 
Lincoln had their office. According to tradition, this is that part 
occupied by the law firm. The section adjoining on the north was 
recently torn down to make room for a modern structure. 

74 



FIRST PARTNERSHIP 

some importance in the community, and his office 
was situated in Hoffman's Row, over what was 
then the county court-house. Compared with 
the luxury and convenience of modern law- 
chambers, the appointments of this office seem 
somewhat meager. The furniture consisted of a 
roughly-made table, a few chairs, a lounge, a 
bench, and an old wood-stove, and the library com- 
prised five Illinois Reports and about twenty vol- 
umes of miscellaneous law-books, legislative re- 
ports, and congressional documents, arranged on 
clumsy board shelves nailed to the bare walls. 
Inadequate as this equipment may appear, it was 
superior to that of the average country practi- 
tioner. Indeed, Mr. Conkling, in his legal remi- 
niscences of Chicago, states that there were not at 
that time half a dozen law libraries in the city 
which could boast a hundred volumes, and that 
the Revised Statutes, the Illinois Form-book, 
and a few elementary treatises constituted the 
usual legal outfit. 

In this small, bare, and uninviting office Lin- 
coln passed much of his time for the next few 
years, working there by day and sometimes re- 
maining for the night, sleeping on the crazy old 

75 





y* 



LINCOLN THE LAWYER 

lounge, covered with a buffalo robe. Fortunately 
for him, there was no necessity for such en- 



&Z^~y P^^'-^ <&-*JC <?<^ ^^^a-J ^ — -*- £o 

/2-*^*^ - t £*~£J t^?y rf& v ~ $y^* //V^^W^/ ■"%* <^-~-<*C <*• 

From collection of John W. Thornton, Esq. 

Letter written by Lincoln concerning preparation for the bar. See 
also letters to two young law students, Isham Reavis (1855) and 
J. M. Brockman (1860), quoted in " The Career of a Country Lawyer" 
by Charles W. Moores, Esq., printed by American Bar Association. 

grossing desk-work as is now required of am- 
bitious attorneys ; but there was more dull, clerical 
routine than falls to the lot of the average 
practitioner of to-day. All legal papers had to 

76 



e~ 



FIRST PARTNERSHIP 

be written out in long-hand, and as there were 
no duplicating-machines, every additional copy 
meant considerable manual labor, and most of 
this drudgery fell upon the junior partner. He 
not only drew the papers, but he kept the books 
of the firm, and while Stuart was in Congress he 
tried almost all the cases. 

That he had virtually no legal precedents to 
guide him was distinctly an advantage. In these 
days of encyclopedias and digests, a man who 
enters upon the study of law with a creative mind, 
capable of logical deductions and close reason- 
ing, is apt to become "case-ridden" before he has 
fairly started on his practice. Many modern 
students unconsciously surrender their judg- 
ment to the guidance of the court of last resort. 
Their sense of justice sways with the pre- 
vailing opinion ; they cease to reason, and merely 
parrot the latest decisions. 

Lincoln was subjected to no such stunting 
influences. He reasoned out new propositions 
with an unbiased mind, not with the idea of 
agreeing or disagreeing with the previously 
expressed conclusions of some other intellect, but 
to get at the truth of the matter ; and it was 
doubtless this training which enabled him at a 

77 



LINCOLN THE LAWYER 

later period to state political issues with more 
originality and clearness than any other speaker 
of his day. 

There is a story to the effect that when he 
argued his first appeal before the Supreme Court 
at Springfield, he announced that all the adjudi- 
cations he had been able to find were against his 
contention, and he would, therefore, merely read 
the decisions he had collated and submit the mat- 
ter to the court. 1 

If this story be true, it is certainly fortunate 
that legal precedents were rare in Illinois, other- 
wise Lincoln might have been browbeaten by 
authority, as are some of our case-lawyers of 
to-day. The anecdote is not authenticated, how- 
ever, and it is probably apocryphal. Even if the 
young advocate had been doubtful of his cause, 
he never would have meekly read it out of court 
with adverse decisions. As a matter of self- 
interest, he would have made the best possible 
argument ; for the public was largely represented 
at all judicial hearings, and it was highly im- 
portant for a beginner to make a good impression 
on the assembled audience. He was far too 

i Lincoln's first case in the Supreme Court was Scammon v. 
Cline, reported, in 3 Illinois, 456; and as he had won in the lower 
court, he had no reason to despair. 

78 



FIRST PARTNERSHIP 

shrewd to have made an exhibition of himself 
by quoting decisions against his own client, and 
tamely submitting his cause to the court. Such 
a performance would have ruined a newcomer, 
for it would have been laughed at in every 
corner of his small community before the day 
was over. Lincoln, on the contrary, made a 
favorable impression from the start, and Spring- 
field soon came to hold his legal ability in high 
esteem. 

Although it was important for a young attor- 
ney to give a good account of himself in the 
public sessions of the courts, it was scarcely less 
essential that he should make himself felt in the 
rough-and-tumble debates at the general store or 
other headquarters of public opinion. The law- 
yer who waited for business to come to him in 
those days would never have built up a clientele. 
The village forums were the places where repu- 
tations were won or lost, and the man who made 
his mark there was soon sought as a legal cham- 
pion. Lincoln more than held his own in these 
semi-public discussions and arguments, and it 
was not long before his advent was hailed with 
delight by the habitues of Speed's store, the 
most popular arena in Springfield. 

79 



LINCOLN THE LAWYER 

But though his friends and neighbors recog- 
nized his ability and proclaimed it, his uncouth 
appearance was decidedly against him, and he 
not only failed to inspire strangers with confi- 
dence, but actually invited their derision and 
contempt. 

Shortly after he became associated with 
Stuart, the latter sent him to try a case in 
McLean County for an Englishman named 
Baddeley, giving him a letter of introduction 
which advised the client that he could rely 
upon the bearer to try his case in the best pos- 
sible manner. 

Baddeley inspected his counsel's partner with 
amazement and chagrin. The young man was 
six feet four, awkward, ungainly and appar- 
ently shy. He was dressed in ill-fitting home- 
spun clothes, the trousers a little too short, and 
the coat a trifle too large. He had the appear- 
ance "of a rustic on his first visit to the circus," 
and as the client gazed on him, his astonishment 
turned to indignation and rage. What did 
Stuart mean by sending a bumpkin of that sort 
to represent him ? It was preposterous, insulting, 
and not to be endured. 

Without attempting to conceal his disgust 

80 



FIRST PARTNERSHIP 

Baddeley unceremoniously dispensed with Lin- 
coln's services and straightway retained James 
A. McDougall, later a United States senator 
from California, to take charge of the case. 
History does not relate whether the irate Eng- 
lishman won or lost the cause, but we know that 
he lived to become one of Lincoln's most ardent 
admirers. 

This was not the last time Lincoln's personal 
appearance was to prejudice him in the practice 
of the law. Many years later, Stanton, then one 
of the leading lawyers in the country, was to 
snub "the long-armed creature from Illinois" 
who presumed to assist him in a celebrated case; 
and he also lived to revise his judgment and 
acknowledge the superiority of the man he 
flouted. 



<U 



IX 



HIS EARLY CASES AND COMPETITORS. 

THE record of Lincoln's practice with 
Stuart is very meagre and unsatisfac- 
tory. The first case with which his name 
was connected as an attorney was Hawthorne 
v. Woolridge, one of three cases growing 
out of the same matter which was being liti- 
gated in Stuart's office before Lincoln was 
admitted to the bar, and of which he appar- 
ently had charge during his apprenticeship. 1 
The action, however, never came to trial, being 
settled out of court, and the papers indicate 
that it and the other cases with which it was con- 

i The action was begun on July 1, 1836, and was discontinued 
on March 17, 1837. Every biography which mentions the subject 
states that Lincoln lost his first case, but this is a palpable error. 
Costs were imposed on his client by the order of discontinuance 
in one of the three actions, and against his opponent's clients in 
another, while in the third the costs were divided,— all of which 
was evidently part of the compromise by which the whole litiga- 
tion was settled; but none of the cases was ever tried. 

82 



HIS EARLY CASES 

nected made much ado about nothing, a not 
uncommon feature of pioneer lawsuits. Peo- 
ple carried their differences into the courts far 
more readily in those days than they do now, and 
petty actions for trespass, assault, and similar 
grievances filled the docket. The conduct of 
such cases did not require any very intimate 







From Major Wm. H. Lambert's collection 

"Praecipe" (in Lincoln's handwriting) in the case of Hawthorne 
v. Woolridge, which was Lincoln's so-called first case 

knowledge of law; and as the advocates relied 
largely on fervid oratory to influence the juries, 
Lincoln had no trouble in meeting his opponents 
on even terms. Some of his early political 
speeches which have been preserved demonstrate 
that he was capable of providing flowery elo- 
quence when occasion demanded it, and he must 

83 



LINCOLN THE LAWYER 

have given the country jurors just the sort of 
talk they liked, for he was admittedly successful 
as a pleader. 

Springfield instantly recognized him as a first- 
class stump-speaker, an irresistible mimic, and 
an inimitable raconteur, and it was not long 
before his humorous stories and dry, witty 
remarks began to pass from mouth to mouth; 
but he had been in practice fully a year before 
he demonstrated his qualities as a lawyer, and 
then it was discovered that this tolerant, good- 
natured attorney, though slow to wrath, was, 
when once aroused, a relentless enemy to the evil- 
doer. 

One James Adams, who called himself a gen- 
eral and posed as a lawyer, became a candidate 
for the office of probate justice in Springfield. 
At or about the same time a widow named 
Anderson discovered that some one had forged 
her husband's name to a deed of his real estate, 
and that the property to which she supposed she 
was entitled stood in the name of "General" 
Adams. At this stage of the proceedings she 
retained Stuart & Lincoln, and trouble began 
for the "general." Lincoln speedily made up 
his mind that this man was a scoundrel, and he 

84 



HIS EARLY CASES 

not only brought suit for the recovery of the 
widow's property, but camped on Adams's trail, 
attacking him with handbills, newspaper arti- 
cles, and in the courts, and never resting until he 
unearthed a copy of a New York indictment 
charging him with another forgery, and describ- 
ing him as "a person of evil name and fame and 
of wicked disposition." This put the "general" 
to flight; the woman won her suit and recovered 
the property, and Lincoln's services as a lawyer 
began to be in demand. 

But though his cases were numerous, they 
were not very lucrative. Only two or three of 
the fees recorded in the firm's books for the year 
1837 amount to $50, and most of the entries 
show $5 charged as trial fee. A chancery case 
under date 1837-8 shows a debit of $50, below 
which is written "credit by coat to Stuart, $15," 
making the net cash charge $35, which indicates 
that the firm sometimes "took it out in trade." 

These modest retainers, however, do not by 
any means indicate that Stuart & Lincoln were 
unsuccessful or even in a small way of business. 
The firm ranked well in Springfield, and the 
capital was at that period second only to Chi- 
cago in importance in the State of Illinois. The 

85 



LINCOLN THE LAWYER 

days of great retainers and vast fortunes 
accumulated in the practice of the law had not 
yet arrived, and the highest legal authorities in 
the land did not command very princely rev- 
enues. There is reason to believe that Daniel 
Webster's income from the practice of his pro- 
fession did not average $10,000 a year, and often 
fell far short of it. 



Meu^p. /6w<^£ -) 



X .^yy^y 






i If 

From General Alfred Orendorff s collection 

Lincoln's jocose caption over an entry of Stuart & Lincoln's 
private docket 

Lincoln never kept any private account-books, 
and the firm records are incomplete, so it is 
impossible to tell exactly what his early prac- 
tice was worth in dollars and cents. At all 
events, it was sufficient, with his salary as State 
legislator, to enable him to pay his expenses 
and reduce his debts, and this was his only ambi- 
tion in monetary matters. 

86 



HIS EARLY CASES 

In 1839, while Lincoln was attending the ses- 
sions of the legislature, a company of players 
"on tour" reached the city, and their adventures, 
as described by the late dean of the American 
stage, then a little lad of ten, give an excellent 
picture of the times. 

Springfield being the capital of Illinois [writes Mr. Jeffer- 
son in his Autobiography], it was determined to devote the 
entire season to the entertainment of the members of the 
legislature. Having made money for several weeks previous 
to our arrival, the manager resolved to hire a lot and build 
a theater. The building of a theater in those days did not 
require the amount of capital that it does now. Folding opera- 
chairs were unknown. Gas was an occult mystery not yet 
acknowledged as a fact by the unscientific world of the West. 
The new theater was about ninety feet deep and about forty 
feet wide. No attempt was made at ornamentation ; and as 
it was unpainted, the simple lines of architecture upon which 
it was constructed gave it the appearance of a large dry-goods 
box with a roof. I do not think my father nor Mr. McKenzie 
(his partner) had ever owned anything with a roof until now, 
so they were naturally proud of their possession. 

In the midst of our rising fortunes a heavy blow fell upon 
us. A religious revival was in progress at the time, and the 
fathers of the church not only launched forth against us in 
their sermons, but by some political manceuver got the city 
to pass a new law enjoining a heavy license against our "un- 
holy" calling. I forget the amount, but it was large enough 
to be prohibitory. Here was a terrible condition of affairs. 
All our available funds invested, the legislature in session, 
the town full of people, and we, by a heavy license, denied 
the privilege of opening the new theater. 

87 



LINCOLN THE LAWYER 

In the midst of these troubles a young lawyer 1 called upon 
the manager. He had heard of the injustice and offered, 
if they would place the matter in his hands, to have the li- 
cense taken off, declaring he only desired to see fair play, 
and he would accept no fee, whether he failed or succeeded. 
The young lawyer began his harangue. He handled the 
subject with tact, skill, and humor, tracing the history of 
the drama from the time when Thespis acted in a cart to 
the stage of to-day. He illustrated his speech with a num- 
ber of anecdotes, and kept the council in a roar of laughter; 
his good-humor prevailed, and the exorbitant tax was 
taken off. 

This young lawyer [continues Mr. Jefferson] was very 
popular in Springfield and was honored and beloved by all 
who knew him, and after the time of which I write he held 
a rather important position in the government of the 
United States. He now lies buried near Springfield, un- 
der a monument commemorating his greatness and his vir- 
tues — and his name was Abraham Lincoln. 

There are many more or less authentic anec- 
dotes concerning Lincoln's early practice, but 
neither the character of the litigation in which 
he was engaged nor its remuneration affords 
any fair criterion of his legal ability. He should 
be judged by the place he won for himself 

1 An examination of the old records of Springfield reveals the 
fact that Mr. Lincoln was at or about this time a member of the 
Board of Trustees of the town of Springfield and it is probable 
that he befriended the players in that capacity rather than as a 
lawyer. Mr. Isaac N. Phillips, Reporter of Decisions of the Illinois 
Supreme Court, first called the writer's attention to this fact which 
has heretofore escaped the attention of biographers. 

88 



HIS EARLY CASES 

among his contemporaries, and to estimate the 
value of that judgment it is necessary to know his 
competitors and what manner of men they were. 
The newly settled States attracted immigra- 
tion of a high order of intelligence, and Illinois 
was particularly fortunate in its new citizens. 



ff£ ft yhj? fay* tfx^yf\ 



£ 



&5 




£%L <SL£m*s7r; erf ££> <&^y^<^ 

From Major Win. II. Lambert's collection 

A legal document in Lincoln's handwriting, signed 
Stuart & Lincoln 

Young men came from the East and the South, 
Americans of energy, ambition, and strength, 
who rapidly adapted themselves to their new 
surroundings and became thoroughly identified 
with the local interests. Douglas, 1 Baker, 

i In many of, the legal documents in which Douglas appears as 
an attorney, his name is spelled with a double "s.*' This might 
be imputed to the error of copyists, but some of the papers ex- 
amined by the writer were in Douglas's own handwriting, and 
one of them was an affidavit with the signature plainly showing 
the double "s. ' The law reports also spell his name in this way. 

6 89 



LINCOLN THE LAWYER 

Logan, Edwards, McClernand, Stuart, Trum- 
bull, McDougall, Browning, Hardin, Davis, 
Lincoln — every one of them came of English- 
speaking progenitors, and only one was foreign- 
born. These were some of the men with whom 
Lincoln associated almost from the outset of his 
practice, and many of them were already ad- 
mitted to the bar when he joined the ranks of 
the profession. That they were a remarkably 
talented company does not admit of doubt. 

Among the members of the backwoods legis- 
lature to which Lincoln was first elected were 
a future President of the United States, a 
future candidate for the Presidency, six future 
L T nited States senators, eight future members 
of Congress, a future cabinet secretary, and 
no less than three future judges of the State, 
to say nothing of other men who distinguished 
themselves professionally in later years. Almost 
without exception, these men were lawyers,, and 
Lincoln met and practised against them during 

The careers of Douglas and Lincoln were strangely parallel. Both 
men were born to poverty and they were both self-educated. 
They were members of the same Illinois legislature, competitors 
in the same profession and before the same courts, rivals for the 
hand of the same woman, ran against each other for the United 
States senatorship, and were opposing candidates for the 
Presidency. 

90 




The Hon. James A. McDougall The Hon. Lyman Trumbull 
The Hon. O. H. Browning Ma j .-Gen. John A. McClernand 



HIS EARLY CASES 

the three-and-twenty years of his professional 
life. To have held his own in such a brilliant 
coterie would certainly have been a creditable 
achievement, but it can be demonstrated that Lin- 
coln not only held his own but, earfy in his career, 
became one of the leaders, if not the leader, of the 
Springfield bar. It may be urged, however, that 
most of his competitors were politicians, and not 
lawyers of marked ability, so it is proper to exam- 
ine their records a little more minutely. 

Stephen T. Logan, who came originally from 
Kentucky, was elected a judge of the Circuit 
Court, and is admitted to have been the best nisi 
prius (trial) lawyer in the State. He was 
undoubtedly the leader of the Illinois bar for 
many years. 

Edward Dickenson Baker, the Illinois con- 
gressman, leader of the California bar, and the 
United States senator from Oregon, had a 
national reputation as an orator, and as a jury 
advocate he was second to none in Illinois as 
long as he practised in that State. He and Lin- 
coln were pitted against each other in the courts 
term after term. 

Stephen Arnold Douglas, a public prosecutor 
at twenty-two and a judge at twenty-eight, con- 

93 



LINCOLN THE LAWYER 

gressman, United States senator, and candidate 
for the Presidency, has always been recognized 
as one of the ablest men of his day, and his seven 
years' career at the Illinois bar is scarcely par- 
alleled for brilliancy in the legal annals of the 
United States. Certainly he and Lincoln were 
adversaries often enough to leave no doubt as 
to which had the better legal mind. 

James A. McDougall, who supplanted Lin- 
coln in his case for the Englishman Baddeley, 
afterward became attorney-general for the 
State of Illinois and United States senator from 
California, and, despite his eccentricities, was 
unquestionably a lawyer of ability. 

Lyman Trumbull, United States senator 
from Illinois, was distinguished at the bar long 
before he won political honors, and every writer 
with knowledge of those times includes him 
among the eminent practitioners, of his day; 
while David Davis, judge of the Eighth Illinois 
Circuit, United States senator, and associate 
justice of the Supreme Court of the United 
States at Washington, was, of course, a jurist 
of national repute. 

Leaving the question of his relative standing 
in the profession at large for further considera- 

94 



HIS EARLY CASES 

tion, it is confidently submitted that Lincoln 
won a notable standing at the local bar, almost 
at the outset of his career, among contempor- 
aries who were not only capable lawyers, but 
men of exceptional force and character. Indeed, 
it is exceedingly doubtful if the bar of any other 
state in the Union equaled that of the frontier 
state of Illinois in professional ability when Lin- 
coln won his spurs. 



95 



X 



LINCOLN THE MANAGING CLERK 

WHEN Lincoln was postmaster of New 
Salem he used to tuck the letters inside 
his hat and deliver them whenever he happened 
to meet the persons to whom they were addressed. 
As this is a fair example of his business system, 
it may readily be imagined that the office of 
Stuart & Lincoln was not a model establish- 
ment, where there was a place for everything 
and everything in its place. And it was not. 
Indeed, as a managing clerk the junior partner 
would have been a hopeless failure, and as an 
attorney, in the technical sense of the term, he 
would never have distinguished himself. He dis- 
liked everything connected with the drudgery 
of legal routine, hated drawing the declarations 
and pleas, despised the artificialities and refine- 
ments which were even then beginning to creep 

96 



THE MANAGING CLERK 

into the pleadings, and disregarded forms when- 
ever it was possible to do so. 

There was nothing mechanical, precise, or 
methodical about the man, and in all those house- 
wifely virtues which characterize the careful, 
orderly, exact solicitor he was utterly deficient. 
He never knew where his papers were, and 
apparently the only attempt he ever made to bet- 
ter the disorder was to write on one of the bun- 
dles of papers which littered his desk, "When 
you can't find It anywhere else, look in this." 1 
But that was long after the firm of Stuart & 
Lincoln had dissolved, and even then we find 
him explaining to a correspondent that he had 
placed his letter inside an old hat and had thus 
neglected answering it, which shows he had not 
wholly outgrown the habit of his post-office days. 
Indeed, his hat continued to be his favorite 
receptacle for papers as long as he lived, and he 
never acquired any sense of order. 2 

Fortunately for his peace of mind, Stuart had 

1 This memorandum is in existence to-day. It is owned by a 
Philadelphia law firm. 

2 Even on his journey to Washington he actually mislaid his 
inaugural address, and for a time it was feared that the contents 
of that jealously guarded document would become public prop- 
erty before Buchanan's term expired; but finally it was located, 
and no premature announcement of his policy was made. 

97 



LINCOLN THE LAWYER 

no more system in business affairs than his asso- 
ciate, and the result of their lax methods was, of 
course, confusion worse confounded. Again 
and again we find Lincoln reporting to his part- 
ner in Washington that clients had called for 
deeds which could not be found, and that papers 
were wanted which had disappeared, and there 
is no proof that the Major was ever able to help 
in the search. In fact, neither man took even 
ordinary business precautions, and if either of 
them kept copies of letters, no evidence of 
that fact has yet been discovered. Certainly 
Lincoln's private correspondence was conducted 
in the loosest possible fashion. He would write 
on whatever happened to be handy, and his 
notes for law work or speeches were scribbled on 
the backs of envelopes, edges of newspapers, or 
other available material. Most of these memo- 
randa found their way sooner or later into his 
capacious "stovepipe," and when any particular 
item was needed, the search which followed sug- 
gested the conjurer's hat trick. 

Lincoln was too philosophic to be bored or 
irritated by the details or minutiae of the profes- 
sion. He simply ignored them. The argus- 



THE MANAGING CLERK 

eyed attorney, who sees that every "t" is crossed 
and that every "i" is dotted, doubtless fulfils 
a useful function in the practice of the law, but 
Lincoln was not a lawyer of this quality. Indeed, 
it must be conceded that in all such matters 
another distinguished President of legal antece- 
dents decisively outranks him. Thomas Jeffer- 
son was a master of accounts and bookkeeping. 
He was the champion diarist of the world, the 
most methodical of statisticians, and the neatest, 
most precise "man of business" who ever tied 
papers with red tape and sealed them with green 
seals ; and yet he will never be classed among the 
great lawyers of the nation. Fancy Jefferson 
or any other capable manager writing a client in 
this fashion and turning good business from the 
door : 

As to the real estate, we cannot attend to it. We are not 
real estate agents. We are lawyers. We recommend you 
to give the charge of it to Mr. Isaac S. Britton, a trustworthy 
man and one whom the Lord made on purpose for such 
business." x 

Perhaps this letter displays poor commercial 
judgment, and doubtless it shocked and grieved 
the thrifty man with whom Lincoln was asso- 

1 See article by Jesse W. Weik, in The Century for June, 1904. 

99 



LINCOLN THE LAWYER 

ciated when he wrote it, but it shows that he had 
his own ideas of the dignity of the profession 
and did not purpose to barter it. 

Lincoln's mind was orderly, though his 
methods were not. He neglected details because 
his thought, which was "as direct as light," 
passed instantly to the vital spot, and all else 
seemed unimportant. "If I can free this case 
from technicalities and get it properly swung to 
the jury, I'll win it," he used to say; and this was 
his mental attitude toward all legal questions. 
He had no training in technicalities as long as 
the firm of Stuart & Lincoln lasted, and it is 
doubtful if any teaching would have qualified 
him for attorney work or made him a master of 
detail. Yet as an office lawyer — such as rules 
the destinies of our modern corporate interests— 
he probably would have been invaluable. His 
mind comprehended large subjects without the 
slightest effort. Once concentrated on an issue, 
he passed directly to the point, disregarded the 
thousand and one contingencies, all the academic 
pros and cons, and reduced the problem to its 
simplest possible form. The man who is con- 
stantly mindful of details is apt to attach too 
much importance to small things, and with such 

100 



THE MANAGING CLERK 

a man compromises are difficult, if not impos- 
sible. Lincoln had no training of this sort to over- 
come, and the result is constantly apparent in 
all his important actions of later years. 

It is not, of course, contended that his unmeth- 
odical habits and loose business training prove 
his legal aptitude, but it is submitted that they 
do not define his limitations as a lawyer. His 
natural perceptions were too keen, his mind too 
generously catholic, to admit of the discipline 
enforced by the usual legal training. Education 
of that sort would probably have warped his nat- 
ural talents, and the result might have been a 
conscientious family solicitor instead of the great 
adviser of a nation. He needed the freedom of 
an office innocent of patent letter-files and card- 
catalogue indices to develop his individuality; 
he demanded the growing room of a new coun- 
try where the practice of the law was not con- 
ventionalized out of all meaning and forms did 
not restrict; he required the self-discipline 
which comes of personal, unguided effort and 
unhandicapped competition; and he found the 
requisite conditions in his free-and-easy associa- 
tion with Major Stuart. 

The independence and responsibility which he 
101 



LINCOLN THE LAWYER 

experienced in this partnership allowed him to 
exercise and express his individuality at a time 
when stricter discipline and more technical teach- 
ing would have fretted him or molded his matur- 
ing mind in a different fashion. As it was, hd 
developed naturally into a broad-minded coun- 
selor who reverenced the law without worshiping 
it, and whose sense of justice was not dulled 
by contact with unyielding precedents. 

If Stuart had been ambitious to accumulate 
a fortune, he would have been disappointed with 
his partner; for, with a people as litigious as the 
early Illinois settlers, it was a simple matter to 
stir up strife and make work for the lawyer, and 
Lincoln, instead of egging clients into the courts, 
set his face against such practice. 

c( Discourage litigation' 3 was his advice to law- 
yers. "Persuade your neighbors to compromise 
whenever you can. Point out to them how the 
nominal winner is often the real loser— in fees, 
expenses, and waste of time. As a peacemaker 
the lawyer has a superior opportunity of becom- 
ing a good man. There will always be enough 
business. Never stir up litigation. A worse man 
can scarcely be found than one who does this. 
Who can be more nearly a fiend than he who 

102 



THE MANAGING CLERK 

habitually overhauls the register of deeds in 
search of defects in titles, whereon to stir up 
strife and put money in his pocket? A moral 
tone ought to be infused into the profession 
which shoidd drive such men out of it." 

It has been truly said that those words should 
be posted in every law office in the land, and it 
will be seen, when Lincoln's record is fully 
examined, that it was not a mere theorist who 
wrote them, but an active practitioner of wide 
experience who lived up to his own teaching. 



103 



XI 



EARLY SUCCESS IN THE COURTS 

T INCOLN had served four terms in the 
-*— ^ State legislature, and had once been 
a formidable candidate for speaker of 
that body, before his partnership with 
Stuart terminated. Doubtless he could have 
held the office indefinitely had he chosen 
to do so, but there was neither glory nor 
profit in the work at that particular period of 
Illinois history, and for the time being he had 
obtained all the legislative experience he required. 
Moreover, his ambition was beginning to take a 
wider range, and his name had been seriously 
mentioned for the governorship on more than 
one occasion. This and the fact of his contem- 
plated marriage decided him to retire from poli- 
tics and devote himself exclusively to the prac- 
tice of his profession. 

His four years' association with Stuart had 
104 



EARLY SUCCESS IN THE COURTS 

given him a fair start in the law, and he had 
enlarged his acquaintance and experience by 
traveling the circuit on every possible occasion. 
In those days lawyers in active practice spent a 
great part of their time following the local 
judges, on horseback or afoot, from one town to 
another, journeying in small parties, and stop- 
ping at the same taverns, like a company of 
players on the road. Some of the leaders, like 
Judge Logan, had cases to try in the various vil- 
lages and towns on the route, but others picked 
up business on the way, and, from all accounts, 
the pickings must sometimes have been pain- 
fully lean, for Douglas's fees on one trip 
amounted only to five dollars, and his was an 
unusually magnetic personality. There was 
hardship and discomfort in this work, but even 
in those very early days, when the roads were 
almost impassable and the hotel accommodations 
belied the name, the life had its peculiar charms, 
for the members of the bar were persons of no 
little distinction in the eyes of the country vil- 
lagers, and the advent of the nomadic court was 
the red-letter day of the country calendars. 

Riding and tramping the circuit month after 
month brought Lincoln into close touch with 

105 



LINCOLN THE LAWYER 

almost all the local members of his profession, 
and he took high rank among them almost from 
the start. The nature of his success at this early 
period is, however, a subject of much misappre- 
hension. Most of the biographies give the 
impression that his associates appreciated him as 
an entertaining, unselfish companion, but did 
not consider him very seriously as a lawyer. 
But good nature, generosity, and unselfishness 
do not necessarily insure respect unless a man 
has the power to command it, and that power 
Lincoln most certainly possessed. There is a 
story that he used to be sent ahead as a scout 
when the rivers were swollen, to test the fords 
with his long legs, and doubtless it is true; but 
there is another story that he once interrupted a 
too personal debate as to the proper length for 
a man's legs by remarking, "I should think they 
ought to be long enough to reach from your 
body to the ground," a quiet retort which is said 
to have put some of the debaters in the air. 

It was in the courts, however, that Lincoln's 
nature and disposition showed to best advantage, 
and it was there that he won his most enduring 
popularity and his first real recognition. Law- 
yers frequently refer to each other as brothers, 

106 



s > 








- 


1 


K 




r ^ 


^ LI ^ ^ i 






f k 


$ s 


* 


r< 



k 




EARLY SUCCESS IN THE COURTS 

but there is very little real fraternity in the pro- 
fession. The sharp, personal collisions inevitable 
in litigation bruise and jar the contestants, no 
matter how hardened they may be, and the man 
who emerges from the fray with no prejudice 
against his opponent and without having given 
the least offense possesses a remarkable tempera- 
ment—and such a man was Abraham Lincoln. 
He knew how to try a case without making it a 
personal issue between counsel. He could utter 
effective replies without insulting his opponent, 
and during all his practice he never made an 
enemy in the ranks of the profession. No one 
but a lawyer can appreciate what this means; 
but it requires generosity, patience, tact, cour- 
tesy, firmness, courage, self-control, and a big- 
mindedness which few men possess. Yet, day 
after day and year after year, Lincoln met all 
sorts and conditions of lawyers at a time when 
they were all young, ambitious, and keen to suc- 
ceed, without embittering any one or forfeiting 
his self-respect. Not many members of the pro- 
fession can show an equal record ; certainly none 
of the Springfield bar has left a similar reputa- 
tion. 

That Lincoln's experience in the courts 

7 109 



LINCOLN THE LAWYER 

guided his conduct in the political arena and in 
the hard-fought field of statesmanship cannot 
reasonably be questioned. No public man in this 
country ever engaged in more heated contro- 
versies than he, none was ever subjected to such 
bitter taunts or suffered such provocation; yet 
after years of the fiercest political warfare and a 
duel of debate unsurpassed in the history of the 
world, his most zealous opponent was able to side 
with him in the hour of national peril, and when 
he took the oath of office as President of the 
United States, that same bitter rival, and unsuc- 
cessful candidate for the mighty office, stood by 
him and held his capacious hat. Nor was Doug- 
las the only one of his competitors who harbored 
no resentment in the hour of defeat. Seward, 
the ambition of whose life was crushed when 
Lincoln was nominated, and who accepted office 
under the rail-splitter only "to save the country," 
had no cheap retorts to forget when he came to 
acknowledge his adversary as "the best man of 
us all"; and to-day the South can find no word 
of offense in all the utterances of the most tire- 
less advocate of emancipation and the Union. 

It may be claimed, however, that Lincoln's 
early reputation as a fair, clean practitioner does 

110 



EARLY SUCCESS IN THE COURTS 

not prove that he was regarded seriously as a 
lawyer when he first practised on the circuit, and 
of course it does not. But there is very positive 
proof of his professional recognition in the fact 
that when his association with Stuart ended, 
Stephen Logan, the leading lawyer of the cir- 
cuit, if not of the State, a former judge, and 
one of the canniest business men at the bar, 
singled him out from all his contemporaries and 
offered him a partnership. 



Ill 



XII 

A NOTABLE PARTNERSHIP 

rpHE story of Lincoln's professional life 
A might fairly be said to date from his asso- 
ciation with Judge Logan; for although he had 
already seen four years of practice, his ex- 
perience had been mainly preparatory, and what- 
ever law he knew he had taught himself without 
competent guidance or control. His new part- 
ner, however, possessed not only a strong indi- 
viduality, but also a positive genius for develop- 
ing legal talents, and his example and instruc- 
tion undoubtedly had an immediate and lasting 
influence upon Lincoln's subsequent career. 

Stephen Trigg Logan was, like his partner, 
a native of Kentucky, but when he moved to Illi- 
nois he was thirty-two years of age and he had 
been Commonwealth Attorney in his own State 
for ten years before he opened an office in 
Springfield. Not only was he better equipped 
by education and training than most of the Illi- 

112 



A NOTABLE PARTNERSHIP 

nois practitioners, but he was unusualjy well 
endowed by nature for the practice of his pro- 
fession, and he speedily took high rank at the 
bar of Illinois, Indeed, such was his reputation 
for ability and learning that he was appointed 
judge of the Fifth Circuit less than three years 
after his arrival at Springfield; but the judicial 
salary— seven hundred and fifty dollars a year 1 
— was wholly inadequate for a man of his cali- 
ber, and becoming restless under this pecuniary 
sacrifice, he resigned in 1837, after two years' 
service on the bench. His unquestioned leader- 
ship of the bar dates from this return to prac- 
tice, and for many years afterward his sway was 
almost absolute. In the third volume of the Illi- 
nois Supreme Court Reports his name appears 
in connection with no less than twenty-six appeals 
— an unprecedented record for those times, 
showing that he was retained on one side or the 
other of almost every important matter in the 
courts. 2 

These facts demonstrate the extent and value 

i Laws of 1834-5, p. 167. Afterward the salary was raised 
to a thousand dollars. 

2 A very complete biographical sketch of Judge Logan is con- 
tained in a volume, now out of print, entitled, "The Life and 
Character of Stephen T. Logan," published in Springfield, Illinois, 
in 1882. 

113 



LINCOLN THE LAWYER 

of his practice, and there is every reason to 
believe he had the whole bar to choose from when 
he suggested a partnership to Lincoln in the 
spring of 1841. It could not have been for his 
social qualities that Logan chose his man, and he 
certainly could not have coveted the small per- 
sonal clientage which Lincoln had secured dur- 
ing his apprentice years. Neither is it at all 
probable that he allowed any question of friend- 
ship to enter into his business calculations. 
Doubtless he liked the young man and found 
his company agreeable, but there was a strong 
mixture of Scotch blood in the judge's veins, 
and his eyes very rarely wandered from the main 
chance. He wanted an assistant capable of help- 
ing him with his steadily increasing legal work, 
and the explanation of his choice was obvious. 
Lie believed that Lincoln had in him the makings 
of an able lawyer, and he instinctively recog- 
nized promising legal material in the rough. No 
less than seven distinguished members of the bar 
and statesmen of repute — four United States 
senators and three governors of States — were 
developed in the same office in later years, and 
their careers testify to the powerful influence of 

114 



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qfZzfi^C 



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^£<^ (J . °C_ d- o 



A NOTABLE PARTNERSHIP 

their preceptor and his faculty for discovering 
latent talent. 

Logan's recognition of Lincoln's qualifica- 
tions was not, however, wholly divination. His 
attention had been first attracted to the young 
man by a "very sensible speech" which he had 
delivered during his earliest political canvass, 
and when he was admitted to practice the judge 
was on the bench and doubtless heard his maiden 
efforts at the bar. 1 Later he frequently met 
him in practice on the circuit, and received 
the best possible proof of his legal aptitudes; 
for in the fourth volume of Illinois Reports we 
find him opposed to his future partner in at least 
three appeals from cases tried as early as 1839, 
and in all of them Lincoln was the victor. More- 
over, one of these cases (Bailey v. Cromwell, 4 
Ills., 71) involved an important principle, and 
was otherwise calculated to inspire each man 
to his very best effort, although neither could 
possibly have dreamed that it was to have a place 
in history as the first contest touching slavery in 
which the great Emancipator was engaged. 

1 Judge Logan made the order admitting Lincoln to the bar 
(Record of the Circuit Court, Sangamon County, p. 173), and 
he also signed the order discontinuing what is known as his first 
case. 

117 



LINCOLN THE LAWYER 

This case grew out of a promisory note made 
by one Bailey to one Cromwell in pa}^ment of the 
purchase price of a negro girl named Nance. 
When the note matured the maker declined to 
pay it on the ground that Nance was not a slave, 
and the trial turned entirely upon this point. 
Lincoln was retained by Bailey, and a hot fight 
followed in which Lincoln was beaten; but he 
immediately appealed to the Supreme Court, 
which sustained his contention and, reversing the 
lower court, declared the girl free. 1 

Except in the matter of their legal qualities, 
however, the new associates were a strangely 
assorted pair. There was only nine years' differ- 
ence in their ages, but Logan had been in prac- 
tice for at least fifteen years when Lincoln was 
admitted to the bar; and, as all his powers were 
matured before Lincoln's began to develop, he 
appeared much older, and in temperament the 
two men were hopelessly apart. Logan was a 

1 On his brief in this case Lincoln cited 10 Johns., 198; 10 Wend., 
384; 3 Caines, 325; Ordinance of Congress, Art. vi; R. L. 57; Gale's 
Stat., 44; Constitution of Ills., Art. vi; 14 Johns., 188; 2 Bibb., 238; 
2 Salkeld, 666; which illustrates the extent of his available legal ma- 
terial at that period. 

The writer finds that Bailey v. Cromwell has been cited by other 
judges in later cases, at least eighteen times. 

118 



A NOTABLE PARTNERSHIP 

formal, precise, technical attorney, who read 
Blackstone's Commentaries from beginning to 
end at least once eveiy year until he was sixty, 
and whose shrewd, hard face and keen eyes 
bespoke the man of business. He was orderly 
and methodical in his habits, careful and pains- 
taking in all matters of detail, highly moral 
"with an old-fashioned lawyer's sense of moral- 
ity," industrious to a fault, ambitious to make 
money, and wholly absorbed in the practice of 
his profession. With such a man Abraham Lin- 
coln, of course, had little in common ; for he him- 
self was easy-going, unsystematic, and without 
the slightest inclination for wealth. "Wealth," 
he observed, "is simply a superfluity of things 
we don't need," and his indifference to the com- 
mercial advantages of the legal profession must 
have amazed his associate, who never lost sight 
of them, and died a rich man. But though he 
did not care to make money, Lincoln was exceed- 
ingly ambitious to make a name for himself ; and 
realizing his own shortcomings as a lawyer, he 
studied the methods of his experienced partner 
with the closest attention. Until he came under 
Logan's influence he had practised in the laziest 

119 



LINCOLN THE LAWYER 

possible fashion, making virtually no prepara- 
tion for his cases, and relying on his wits and the 
inspiration of the moment to carry the jury with 
him. It would have been impossible for any man 
to accomplish much by such methods, and Lin- 
coln's mental process was particularly ill adapted 
for haphazard work. His mind acted slowly, 
and although he could make a quick reply upon 
occasion, he required time to do himself full jus- 
tice either in the courts or on the platform. 
Whether Logan told him this in so many words, 
or whether he discovered it for himself, is of 
little moment, but it is certain that he soon began 
to adopt his partner's methods, studying his 
cases with the utmost care and diligently exam- 
ining the law. This training immediately 
showed itself in his work. 

Instead of being occasionally dangerous, he 
soon became a formidable opponent whenever he 
believed in a cause. He was too broad-minded for 
the blind partizanship of the average small attor- 
ney, and instinctively looked on both sides of 
each question; but it was doubtless Logan who 
showed him the tactical advantage of knowing 
his adversary's case as thoroughly as he knew his 
own, and, as a result, we have his own testimony 

120 



A NOTABLE PARTNERSHIP 

that in all his practice at the bar he was never 
once surprised by the strength of his opponent's 
cause, and often found it much weaker than he 
had hoped. 

It is only necessary to recall a few episodes 
in Lincoln's public career to realize how this 
training served him in time of need. When 
Captain Wilkes stopped the Trent on the high 
seas and removed the Confederate envoys 
Mason and Slidell from the protection of the 
English flag, Lincoln was at first inclined to take 
the popular view of the matter; but he calmly 
weighed the angry protest of the mother-coun- 
try, argued her case in his own mind, and not 
only saw that she was right, but also shrewdly 
noted the tactical advantage of submission, 
which he quietly pointed out in the most signifi- 
cant words. 

"We must stick to American principles con- 
cerning the rights of neutrals," he remarked. 
"We fought Great Britain for insisting by 
theory and practice on the right to do precisely 
what Captain Wilkes has done. If Great Brit- 
ain shall now protest against the act and demand 
Slidell and Mason, we must give them up and 
apologize for the act as a violation of our own 

121 



LINCOLN THE LAWYER 

doctrines, and thus forever bind her over to keep 
the peace in relation to neutrals and so acknowl- 
edge that she has been wrong for sixty years! 3 

Again, it was his knowledge of his opponent's 
armor which made him the most dangerous 
debater of the slavery issue. Abolitionists ranted 
and rashly accused the Southerners of high crimes 
and misdemeanors of which they were wholly 
innocent. Lincoln learned the pro-slavery argu- 
ments, stated them fairly, analyzed them piti- 
lessly, turned them against their sponsors, and 
convicted them out of their own mouths. It was 
this great legal trait, acquired and cultivated in 
Logan's office, that Douglas had in mind when 
he exclaimed that "Lincoln had given him more 
trouble than all the Abolitionists put together." 

Logan did not succeed in teaching his young 
partner to be a technical lawyer, but he did 
undoubtedly show him the tactical value of pro- 
cedure, and it will be seen in another chapter that 
he occasionally availed himself of this knowl- 
edge, although he never practised by rule of 
thumb. In the matter of strategy he needed no 
instruction, and his knowledge of human nature 
was vastly superior to Logan's. Moreover, the 
judge's sense of humor was somewhat deficient, 

122 



A NOTABLE PARTNERSHIP 

and Lincoln once took an amusing" advantage of 
this when he was practising against him before a 
jury on the circuit. Logan was dignity itself on 
such occasions; but, orderly as he was in most 
matters, he seldom wore a necktie and was other- 
wise careless about his dress, and Lincoln, know- 
ing his man, proceeded to unhorse him as soon 
as he addressed the jury. 

"Gentlemen," he began, "you must be careful 
and not permit yourselves to be overborne by the 
eloquence of the counsel for the defense. Judge 
Logan, I know, is an effective lawyer. I have 
met him too often to doubt that; but shrewd and 
careful though he be, still, he is sometimes 
wrong. Since this trial began I have discovered 
that, with all his caution and fastidiousness, he 
has n't knowledge enough to put his shirt on 
right." 

Logan turned crimson with embarrassment, 
and the jurors burst into a roar of laughter as 
they discovered that the discomfited advocate 
was wearing the garment in question with the 
plaited bosom behind, and for the rest of that 
trial Logan was not effective against his former 
partner. 



123 



XIII 

JUDGE LOGAN AND LINCOLN 

THE terms of Lincoln's partnership with 
Judge Logan are not known, but it may 
reasonably be inferred that the junior member of 
the firm received only a small percentage of the 
fees, for the business was almost entirely Logan's, 
and he was not by nature over-generous. Indeed, 
he had quarreled with his former partner, the bril- 
liant orator Edward Dickenson Baker, on mone- 
tary matters; and it is probable that there were 
few members of the bar who would have been 
as tractable as Lincoln on the question of com- 
pensation. Certainly his style of living at that 
period indicated a very slender revenue, consid- 
ering the standing of the firm ; for even after his 
marriage with Miss Mary Todd, in November, 
1842, he and his wife were not able to keep house, 
but lived at the Globe Tavern, where their room 

124 



JUDGE LOGAN AND LINCOLN 

and board cost only four dollars a week ; and still 
later in the partnership he wrote that he could 
not accept an invitation to visit Kentucky 
"because he was so poor and made so little head- 
way that he dropped back in a month of idleness 
as much as he gained in a year's sowing." 

During all this time, however, the practice of 
the firm was steadily increasing and Logan was 
becoming rich; so it is fair to assume that Lin- 
coln was not receiving the lion's share of the 
profits. It would have been surprising if business 
had not been prosperous, for the partners 
worked together in entire harmony, and Spring- 
field was at that time the center of all things 
legal in Illinois. Not only were the United 
States courts located there, but the County 
Court, the Circuit Court, and the Supreme 
Court (the tribunal of last resort) , and the State 
legislature likewise, held their sessions in the city, 
and the indications are that the firm reaped a rich 
harvest from all these fields of legal endeavor. 

Success in the courts is not an infallible crite- 
rion of legal ability, but it is an interesting fact 
that Lincoln argued no less than fourteen 
appeals before the Supreme Court at the De- 
cember term of 1841, and succeeded in all of 

125 



LINCOLN THE LAWYER 

them but four, a record which was not surpassed 
even by Logan himself; and, between them, the 
partners well-nigh monopolized that court at the 
terms of 1842-3. In that period they argued 
twenty-four final appeals, and won all of them 
but seven, a fact which not only indicates the 
extent of their practice, but affords a fair infer- 
ence of their success in other courts. 1 

Under the circumstances, it is not surprising 
that Lincoln gave little attention to politics dur- 
ing his partnership with Logan, though he did 
not altogether withdraw from public life. The 
mention of his name for the governorship in 
1841 had been serious enough to call for a semi- 
official declination; but there was no organized 
effort made to induce him to accept the nomina- 
tion, and the subject was dropped. Despite his 
close attention to business he was, nevertheless, 
more or less active in the councils of the Whig 
party during the first two years of his associa- 
tion with Logan, and in 1843 he became chair- 
man of the local convention, drew the politi- 
cal platform and otherwise manifested keen 

1 Some of the records of the Illinois circuit courts have been 
destroyed by fire, but the writer frequently noted Lincoln's name 
in the judge's minutes, and found other indications that he was 
at this time doing his share of circuit work. 

126 



JUDGE LOGAN AND LINCOLN 

interest in party matters, at the same time 
becoming an active candidate for the congres- 




Drawn by Harry Fenn from a photograph 

The building in Springfield on the third floor 
of which was the office of Logan & Lincoln 

sional nomination. His most formidable rival 
for this honor was Baker, Logan's former 
8 127 



LINCOLN THE LAWYER 

partner; but neither man was strong enough to 
carry the convention, and John J. Hardin, 
another prominent member of the bar, was 
named and elected. The following year Baker 
and Lincoln were again mentioned for the same 
office, but Lincoln refused to contest the place 
with his friend and fellow-member at the bar, 
who had long set his heart upon obtaining the 
prize, and to whom defeat would have brought 
great bitterness. Indeed, Baker's political 
ambitions were almost boundless, and in after 
years Judge Davis used to tell a story about him 
to the effect that when he first read the Consti- 
tution of the United States and discovered that 
no one but a native American could be President, 
he burst into tears, bewailing the fact that he 
was ineligible, having been born in England. 
Largely as a result of Lincoln's withdrawal, 
Baker received the coveted nomination, and 
was subsequently elected to Congress, afterward 
becoming the leader of the California bar and 
United States senator from Oregon. There was 
certainly a strange fatality about these early 
congressional contests, for each of the three 
friendly competitors died for his country 
in the order of his election— Hardin gal- 

128 



JUDGE LOGAN AND LINCOLN 

lantly leading his troops in a charge at 
the battle of Buena Vista in the Mexican War, 
Baker while commanding his regiment at the 
disastrous battle of Ball's Bluff in 1861, and 
Lincoln at the head of the nation. 

There is reason to suppose that Logan, know- 
ing his partner's deficiencies in the law, origin- 
ally intended to utilize his talents as a jury advo- 
cate; but after Lincoln began to study in earn- 
est, he developed other qualities which made him 
quite as effective with the court as he was with 
the jury, and the two men were thereafter con- 
stantly together in all sorts of legal work. "He 
would study out his case and make about as 
much of it as any one," Logan remarked, 
speaking of his partner many years afterward. 
"His ambition as a lawyer increased; he grew 
constantly. By close study of each case as it 
came up he got to be quite a formidable lawyer." 

It has been stated that under Logan's tutelage 
Lincoln became a "case-lawyer," but this is not 
true if a case-lawyer be one who has at his 
tongue's end all the precedents affecting any 
given state of facts, and who is lost unless his 
legal trail is plainly blazed. But if the term 
describes one who makes no excursions into the 

129 



LINCOLN THE LAWYER 

field of general legal knowledge and is not con- 
cerned with its theories and philosophy, then Lin- 
coln may properly be described as a case-law 
yer. He met each problem as it presented itself, 



&£<-£*-0 



*^u~^ cu^c- 6L*^y - ^J^Lc. if**-*' 3Lzz^^, 




!5g. 

From the collection of Major William H. Lambert 

Beginning and conclusion of a legal document in Lincoln's 
handwriting, signed Logan and Lincoln 

attempting to do only one thing at a time, con- 
centrating the whole power of his mind upon the 
subject in hand until he mastered it, and never 
forgetting any item of information when once 
acquired. His mind, he remarked, was like a 
piece of steel — very hard to scratch, but almost 
impossible to free of any mark once made 
upon it. He did not trouble himself to analyze 
the subtleties and labored profundities of the 

130 



JUDGE LOGAN AND LINCOLN 

law, and never made the slightest pretense to aca- 
demic knowledge. For real scholarship he had, 
of course, a profound respect, but the pseudo- 
learning often displayed in the courts only 
amused him. On one occasion a lawyer against 
whom he was practising quoted a Latin maxim, 
and then, either to impress his hearers or to em- 
barrass his adversary, added, "Is not that so, Mr. 
Lincoln?" 

"If that is Latin," Lincoln responded dryly, 
"I think you had better call another witness." 

While Logan and Lincoln were practising 
together certain changes were made in the judi- 
ciary, and among the new judges elected by the 
legislature was Stephen Arnold Douglas, then 
in his twenty-eighth year. Judge Douglas pre- 
sided over the Fifth Circuit, and Lincoln's prac- 
tice was almost entirely in the Eighth; but in 
those days the circuit judges, as a body, formed 
the Supreme (appellate) Court, and Lincoln 
must have argued many cases before his future 
rival for Senatorial and presidential honors, and 
in one case (Grubb v. Crane, 5 Ills., 153) Doug- 
las delivered the prevailing opinion of the court 
in Lincoln's favor. 

The exact date of the dissolution of Logan & 
131 



LINCOLN THE LAWYER 

Lincoln's partnership is not clear, but their 
names appear together in the case of Rogers v. 
Dickey (6 Ills., 636), argued in November, 1843, 
and they were opposed to each other in Kelly v. 
Garrett (6 Ills., 649) in March, 1844, so the sep- 
aration must have taken place sometime between 
these two dates. Mr. Herndon says that politi- 
cal rivalry was at the bottom of the dissolution, 
and hints that Logan desired the nomination for 
Congress which eventually went to Lincoln. 
This may have been so, but it is difficult to see 
how Lincoln's nomination in 1846 could have 
caused the partners to separate in 1844, and the 
fact is that Logan himself made the speech which 
nominated his ex-partner for Congress, fought 
hard to make him United States senator from 
Illinois, and remained his warm friend and sup- 
porter as long as he lived. The real cause of the 
dissolution of the firm is to be found in 
the character and temperament of the 
two men. Lincoln was naturally independent, 
and he outgrew the guidance of his preceptor. 
He was a born leader, and not a subordinate, 
and it was against his nature to remain in a posi- 
tion of dependence any longer than was neces- 
sary. Therefore, the moment he felt strong 
enough, he started out for himself. 

132 



JUDGE LOGAN AND LINCOLN 

It is, however, impossible to overestimate the 
influence which Logan exerted upon his asso- 
ciate. He laid the foundations upon which Lin- 
coln built his legal career, and there was no other 
lawyer in Illinois who could have given him any- 
thing like the same incentive and training. 
Indeed, there is no legal reputation in the State 
to-day which is more secure than Logan's, and 
time has only confirmed the judgment of his 
peers. The Hon. David Davis, after ten years' 
experience as circuit judge and fifteen years' 
service on the bench of the Supreme Court of 
the United States, declared that he was the ablest 
lawyer he had ever met, and his opinion justifies 
the conclusion that Lincoln in his second part- 
nership came into touch with one of the most 
extraordinary legal minds in the country. 

i A young lawyer once asked Lincoln if the county-seat of 
Logan County was named after him. "Well, it was named after 
I was," Mr. Lincoln responded gravely. 



133 



XIV 

LINCOLN THE HEAD OF A LAW FIRM 

IT required no little courage and self-confidence 
for Lincoln to sever his relations with Logan, 
for he and his family were entirely dependent 
upon his earnings, and when he left the judge's 
office he had not, strictly speaking, a client whom 
he could call his own. Until that time he had 
never been obliged to face the difficulties of 
building up a practice, for he had stepped into 
an established business when Stuart gave him 
his start in the law, and a ready-made clientage 
awaited him in the partnership with Logan. 
Doubtless he had strengthened and increased the 
judge's business, but he was not entitled, as a 
matter of right, to any definite share of it when 
he left, and the fact that clients cannot be par- 
celed off like merchandise would have prevented 
a partition of the patronage in any case. Of 
course the retiring member of a law firm is justi- 

184 



HEAD OF A LAW FIRM 

fied in accepting any clients who voluntarily 
follow him to his new office, but there is a 
delicate professional courtesy to be observed in 
such matters, and Lincoln was not the sort of 
man who would willingly supplant an ex-asso- 
ciate. It is not probable, therefore, that he 
counted on acquiring any of Logan's business 
when he left him, and there is no indication that 
the two men ever had the slightest misunder- 
standing over any such question. 

But though he had no business following, 
Lincoln had good reasons for believing that he 
could hold his own in the practice of the law at 
Springfield. He had a wide acquaintance in 
the neighborhood, he was popular with all sorts 
and conditions of men, and he knew himself to 
be the peer of his competitors at the local bar. 
Lincoln was modest,— modest to the point of 
humility,— but he was always properly aware of 
his own abilities. He never boasted of what he 
could or would accomplish, but he did not 
attempt to discount failure with self-deprecia- 
tion, knowing that excuses have merely a per- 
sonal interest and that accomplishment makes its 
own claims. He did not challenge events, but 
met them boldly, instinctively responding at 

135 



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S c s 







HEAD OF A LAW FIRM 

every crisis to the latent powers within him; and 
in a large measure this was the secret of his suc- 
cess. 

It was in this spirit that he faced the future 
when he withdrew from the valuable alliance 
with Judge Logan. He thought he could stand 
alone, and, feeling his own strength, he was anx- 
ious to match himself against his contemporaries, 
relying solely on his own resources. There was 
no assumption of superiority in this. It was the 
natural desire of a strong man with a stout 
heart. 

But though he believed in himself and made 
his hazard of new fortunes without misgiving, 
Lincoln was neither adventurous nor sanguine 
by nature. Even as a boy he had not displayed 
the usual confidence of youth, and in his first 
public address he advised the voters of Sanga- 
mon County that he was already too familiar 
with disappointments to be very much chagrined 
if his aspirations met with defeat. He was not 
exactly despondent, but there was a suggestion 
of fatalism in his mental attitude toward many 
questions; and, as he matured and his responsi- 
bilities increased, he became more and more 
thoughtful, serious, and inclined to deep deprefc- 

137 



LINCOLN THE LAWYER 

sion. Indeed, at one time — just before he 
joined Judge Logan— he was actually threat- 
ened with melancholia, induced by a combined 
attack of "engagement fever" and malaria, and 
all his life he fought despondency with jest and 
joke and story, winning where most men would 
have lost. Humor was the talisman with which 
he exercised "the fretful fiends of doubt and 
care." 

If Lincoln had yielded to his natural tenden- 
cies and encouraged self -distrust at the moment 
of parting with Judge Logan, he could easily 
have found another partner with a ready-made 
practice in Springfield; for there were a number 
of well-established lawyers who would have been 
only too glad to make generous terms with 
Logan's ex-associate. His days of even quasi- 
dependence were over, however, and he was 
ambitious to be the head and front of his own 
business. Of course the simplest method of 
accomplishing this would have been to practise 
by himself. Yet had he started out absolutely 
alone, he would have been obliged to undertake 
all his own office work, for law clerks were not 
easily procured in those days, and he was utterly 
unfitted by nature for coping with small drudg- 

138 




William H. Herndor 



HEAD OF A LAW FIRM 

eries. Moreover, it so happened that one of his 
friends, recently admitted to the bar, was in need 
of just the start which a junior partnership pro- 
vided, and it was under these circumstances that 
he offered William Henry Herndon the chance 
of his life. 

It is a curious coincidence that all three of 
Lincoln's partners were, like him, natives of 
Kentucky; but Herndon's family had moved to 
Illinois when he was a mere child, and his youth 
had been passed in the neighborhood of Spring- 
field. He was nine years younger than his senior 
partner, whom he had first encountered on the 
eventful occasion when Lincoln had piloted the 
gallant steamer Talisman in her attempt to force 
the passage of the Sangamon, and this acciden- 
tal meeting led to a closer acquaintance, which 
was turned to friendship through an incident 
connected with the murder of Elijah Love joy, 
the Abolitionist. 

Herndon was a student in the college at Jack- 
sonville, Illinois, when Love joy set up his anti- 
slavery press at Alton and began the campaign 
which resulted in his death at the hands of a mob. 
The crime aroused violent excitement through- 
out the State. Indignation meetings were held, 

141 



LINCOLN THE LAWYER 

speeches were made, and violent condemnation 
of the outrage was expressed in every form. 
Indeed the Jacksonville students voiced their 
sentiments so openly that Herndon's father, a 
pronounced slavery man, withdrew his son from 
the college, fearing that his mind would be poi- 
soned by the Abolition doctrines. But the 
young man returned to Springfield with his 
opinions already formed, and it was undoubtedly 
his bold anti-slavery utterances at a time when 
the people of Illinois picked their words very 
carefully on the negro question which cemented 
his friendship with Lincoln. 

Like his future partner, Herndon was first 
employed as a clerk in a grocery store, and 
although he does not say so in his biography, it 
is highly probable that Lincoln procured the 
position for him, as his employer was Joshua 
Speed, Lincoln's most intimate friend. More- 
over, despite Herndon's silence on the subject, 
there is every reason to suppose that it was Lin- 
coln who encouraged his young friend to study 
law. Certainly his legal apprenticeship was 
passed in Logan & Lincoln's office, and under 
all the circumstances it is not strange that his 
preceptor should have kept an eye on him, and 
taken the first opportunity to advance his for- 

142 



HEAD OF A LAW FIRM 

tunes after his admission to the bar. It should 
be stated, however, that Herndon does not 
explain the partnership in this fashion; but, 
unfortunately, he is not the most reliable of 
chroniclers, and there is abundant evidence that 
he failed to appreciate the situation. Many 
years afterward a Chicago lawyer quoted Lin- 
coln as saying that he had selected Herndon, sup- 
posing him to be a good business man who would 
keep the office affairs in order, but soon discov- 
ered that he had no more system than he himself, 
and was in reality a good lawyer, "thus proving 
a double disappointment." Herndon ingenu- 
ously printed this explanation in his "True Story 
of a Great Life," and evidently accepted it with 
no little complacency. But whatever Lincoln 
may have thought of his subordinate's legal 
attainments in later years, — and there is some 
evidence that Herndon grew to be a fair lawyer, 
— it is not likely that he ever placed much depen- 
dence on his orderly habits; for he must have 
been thoroughly acquainted with his shortcom- 
ings in this and other respects long before he 
generously offered him his start in life. 

Certainly there never was an office conducted 
with less method, and Herndon was the last man 
in the world who could have set things right. It 

143 



LINCOLN THE LAWYER 

must be admitted, however, that Lincoln would 
probably have defeated the most capable and 
persistent of managers in any case; for the only 
method he ever personally introduced into the 
firm's affairs was the immediate division of all 
fees which came into his hands, giving his part- 
ner his share at once, if he happened to be pres- 
ent, or placing it in an envelope indorsed, 
"Smith v. Jones— Herndon's half," if he 
chanced to be away. This was the beginning 
and the end of office organization as far as the 
senior partner was concerned. 

Despite its slack business methods, however, 
the firm of Lincoln & Herndon met with fair 
success, the junior partner making a good cleri- 
cal assistant in the drawing of pleadings and 
the minutiae of procedure, and in 1844-5 the 
senior partner argued no less than thirty-three 
appeals before the Supreme Court, an excellent 
first-year record. 1 Doubtless he would have 
been even more successful at the outset had 

i The writer's examination of the Illinois Circuit Court records 
shows that Lincoln conducted all the trial work of the firm at 
this period. It is stated in the third volume of the McLean County 
Historical Society's transactions that Herndon never did any 
circuit work during his partnership with Lincoln; but this is 
manifestly an error, for his name appears frequently in the records 
of later years. 

144 



HEAD OF A LAW FIRM 

he devoted himself exclusively to the law, but in 
1845 he was again a candidate for the congres- 
sional nomination, and his preparation for the 



2/7v>k^, C s^-i2-Sist^*<3-J& 



/***. 



X Mrfc 





From the collection of Major William H. Lambert 

Legal document in Lincoln's handwriting, signed with the firm 
name, and by Lincoln, personally, as security for costs 

campaign necessarily diverted his attention. 
The election took place in 1846, and, after a 
sharp contest, he was returned by a large major- 
ity over Peter Cartwright, the itinerant preacher, 
who had been one of his successful rivals in his 

145 



LINCOLN THE LAWYER 

first canvass for the legislature, and whose 
grandson he was destined to save from the 
gallows by a remarkable and dramatic appeal 
to the jury. 

The partnership of Lincoln and Herndon did 
not immediately terminate as a result of his 
election; for Congress did not convene until late 
in the next year, and the firm continued in active 
practice until the senior member left for Wash- 
ington. 

Lincoln was then in his thirty-ninth year. 
His life had been eventful, his rise from abso- 
lute obscurity phenomenal, and his influence in 
his own State and party remarkable. But the 
character of the man is well illustrated in the 
account which he gave of himself in the "Con- 
gressional Dictionary," and, in view of some of 
the voluminous memoirs of later members which 
adorn the modern official directory, his contri- 
bution is suggestive and instructive. It contains 
just forty-eight words, and reads as follows: 

Born February 12, 1809, in Hardin County, 
Kentucky. 

Education, defective. 

Profession, a lawyer. 

146 



HEAD OF A LAW FIRM 

Have been a captain of volunteers in Black 
Hawk War. 

Postmaster in a very small office. 

Four times a member of the Illinois legisla- 
ture and a member of the lower house of Con- 
gress. 



147 



XV 



LINCOLN THE LAWYER IN CONGRESS 

LINCOLN took his new honors very simply, 
J even a little sadly. "Being elected to Con- 
gress," he wrote, "though I am grateful to our 
friends for having done it, has not pleased me 
as much as I expected." Later he wrote of his 
experiences: "I find speaking here and else- 
where about the same thing. I am about as 
badly scared and no worse than I am when I 
speak in court." But, unlike the Irishman he 
was fond of telling about, whose heart was as 
valiant as any one's, but whose cowardly legs 
would run away with him at the approach of 
danger, Lincoln conquered his timidity and 
speedily displayed a courage of which no mere 
politician would have been capable. 

In 1840, Texas had declared its independence, 
and under the terms of a treaty made with the 
Mexican genera] Santa Anna, the new republic 

148 



IN CONGRESS 

claimed the east bank of the Rio Grande from 
source to mouth as its proper and legal bound- 
ary. It is true that Santa Anna had made such 
a treaty, but as it was signed while that not too 
valiant gentleman was a prisoner and in fear of 
his life, his acceptance of his captors' ideas as to 
boundaries could hardly be regarded as binding 
on his country, especially in view of the fact that 
Mexico had promptly repudiated his alleged 
treaty and continued the war it was supposed 
to have settled. Under ordinary circumstances 
it is doubtful if the United States would have 
insisted upon the very questionable title of Texas 
to the area in dispute; but the new republic had 
applied for admission to the Union and the pro- 
visions of the act admitting it created a tempta- 
tion which the politicians of the country were 
unable to resist. The pro-slavery party in the 
national legislature was beginning to need rein- 
forcements, especially in the Senate, and the act 
conferring statehood upon Texas provided that 
several States might be carved out of the 
acquired territory; and as each new State meant 
two votes in the Senate this legislation promised 
to offset the admission of free States and keep 
the dominant party in control. Then, as a sop to 

149 



LINCOLN THE LAWYER 

the anti-slavery agitators, it was solemnly 
enacted that in such of the new States as lay 
north of 36° 30' (the Missouri Compromise line) 
slavery should be absolutely prohibited, while in 
those which lay south of that boundary slavery 
might exist or might not, as the constitutions of 
the new States provided. When it is remembered 
that no land claimed by Texas lay north of 36° 30', 
the farcical nature of this concession is apparent ; 
but it won enough votes in the Presidential cam- 
paign to insure the admission of the proposed 
new State, and the pro-slavery politicians had 
every incentive to make its dimensions as gener- 
ous as possible. Under all the circumstances, 
President Polk interpreted his election as a 
popular mandate to support the Texan claims, 
and the moment the State was admitted to the 
Union he ordered the army to occupy the dis- 
puted territory, and the country accepted the 
war which followed in an outburst of enthusiasm 
over the success of our arms. 

Such was the situation when Lincoln took his 
seat in Congress; but although some of his 
warmest friends were at the front and almost all 
his constituents approved of the war, he would 
not close his eyes to the facts and refused to be 

150 



IN CONGRESS 

dazzled by military glory. There was a great 
chance for the orator and cheap patriot in the 
fact that a mere handful of Americans was scat- 
tering thousands of Mexicans in every battle, 
and Lincoln was urged to make the most of his 
opportunity and distinguish himself. But 
although he knew what was expected of him and 
what alone would satisfy his friends, and was 
well aware that no critic of his country is toler- 
ated while its foes are under arms, he refused to 
compromise with his conscience and fought the 
government policy with all his might and main. 
Then for the first time in his public life his power 
and training as a lawyer were called into play, 
and in a series of questions which no one but a 
skilful cross-examiner could have phrased he dis- 
posed of the casuistical explanations of the war. 
President Polk, in his several messages to 
Congress, had repeatedly referred to "the Mex- 
ican invasion of our territory and the blood of 
our fellow-citizens shed on our soil" and quot- 
ing these statements as his text, Lincoln intro- 
duced his now famous "Spot Resolutions," 
wherein the President was requested to answer 
eight questions calculated to inform the House 
whether the particular spot on which the blood 

151 



LINCOLN THE LAWYER 

of our citizens was shed was or was not at that 
time "our own soil." There was no escape for 
the Executive from these questions: they were 
pertinent, penetrating, and not without a certain 
grave humor, and each was so drawn as to pre- 
clude the possibility of equivocation or evasion. 
Moreover, they showed an historical knowledge 
of the facts which could not be trifled with, and 
no one supporting the governmental policy 
could possibly have answered them all without 
being caught in a contradiction. 

Resolved by the House of Representatives [they began], 
That the President of the United States be respectfully 
requested to inform this House — 

First. Whether the spot on which the blood of our citi- 
zens was shed, as in his messages declared,, was or was not 
within the territory of Spain, at least after the treaty of 
1819 until the Mexican revolution. 

Second. Whether that spot is or is not within the terri- 
tory which was wrested from Spain by the revolutionary 
government of Mexico. 

Third. Whether that spot is or is not within a settle- 
ment of people, which settlement existed long before the 
Texas revolution and until its inhabitants fled before the 
approach of the United States Army. 

Fourth. Whether that settlement is or is not isolated from 
any and all other settlements by the Gulf and the Rio 
Grande on the south and west, and by wide uninhabited 
regions on the north and east. 

Fifth. Whether the people of that settlement, or a 

152 



IN CONGRESS 

majority of them, or any of them, have ever submitted 
themselves to the government or laws of Texas or of the 
United States, by consent or by compulsion, either by 
accepting office, or voting at elections, or paying tax, or 
serving on juries, or having process served upon them, or 
in any other way. 

Sixth. Whether the people of that settlement did or did 
not flee from the approach of the United States army, leav- 
ing unprotected their homes and their growing crops, before 
the blood was shed, as in the messages stated; and whether 
the first blood so shed was or was not shed within the 
inclosure of one of the people who had thus fled from it. 

Seventh. Whether our citizens whose blood was shed, 
as in his messages declared, were or were not at that time 
armed officers and soldiers, sent into that settlement by the 
military order of the President, through the Secretary of 
War. 

Eighth. Whether the military force of the United States 
was or was not so sent into that settlement after General 
Taylor had more than once intimated to the War Depart- 
ment that in his opinion no such movement was necessary to 
the defense or protection of Texas. 

No interpellation of a government was ever 
phrased in more telling questions. They were 
unanswerable, and the administration sought 
safety in silence. 

Lincoln soon heard from these "Spot Resolu- 
tions," his home friends protesting vehemently 
that he ought not to antagonize the gov- 
ernment in the face of a foreign war, 
and his political opponents seizing upon 

153 



LINCOLN THE LAWYER 

his action to fasten the charge of unpatri- 
otic conduct, if not treason, on his party. 
But neither reproaches nor aspersions caused 
Lincoln to change his attitude. To his friends 
he explained that he would vote, and had always 
voted, for whatever was necessary for the sup- 
port of the army in the field, but the policy which 
had sent it there was a national disgrace which 
could not be palliated with self-respect and 
honor. The claim that the war was not aggres- 
sive reminded him, he declared, of the Illinois 
farmer who asserted: "I ain't greedy 'bout land. 
I only just wants what jines mine." 

But Whigs and Democrats alike were carried 
away by the war enthusiasm. Even those who 
did not wholly approve of the Government's 
attitude accepted the result with patriotic 
satisfaction, and it was with keen delight that 
Lincoln saw the administration lose all political 
advantage from its policy by the Whig nomin- 
ation of the war-hero Taylor for the Presidency, 
which, Lincoln declared, "took the Democrats 
on their blind side." But though the popularity 
of his party's candidate was due to achievements 
in the field, the Illinois congressman urged his 
friends not to abate their criticisms of the war 

154 



IN CONGRESS 

or excuse it in any way. General Taylor was a 
brave soldier who obeyed orders even when he 
did not personally approve them, he declared, 
but his candidacy did not demand an indorse- 
ment of the war, and any such action would 
imperil the position of the party. "In law' 3 he 
wrote to General Linder, "it is good policy never 
to plead what you need not, lest you oblige your- 
self to prove what you cannot. 3 ' 

Never was a legal maxim more happily para- 
phrased or more aptly applied. Even in party 
politics the keen lawyer is apparent in Lincoln's 
every move. 

The new congressman's activities were not, 
however, confined to combating and exposing 
the administration's policies, but quietly and 
unobtrusively he was working for a cause in 
which his heart and soul were enlisted. As 
early as 1837, while in the Illinois legisla- 
ture, he had placed himself upon record as op- 
posing the extension of slavery and favoring 
its exclusion from the District of Columbia, 
and he had not been long in Washington be- 
fore he put his theories to the test. Here 
again the mind and hand of a shrewd lawyer 
are strongly evidenced. It was his legal train- 

155 



LINCOLN THE LAWYER 

ing which taught Lincoln the value of col- 
lateral attack. He knew, as a lawyer, that an 
unobtrusive precedent sometimes decides a 
mighty issue, and that it is often good legal tac- 
tics to anticipate the coming of great events by 
establishing the law in some minor litigation. 
Doubtless it was with this intent that he quietly 
prepared his bill for gradual compensatory eman- 
cipation of the slaves in the tiny District of Co- 
lumbia, and obtained support for the measure in 
high quarters. How nearly he succeeded in creat- 
ing this precedent is a matter of history, but it 
was not fated that the far-sighted lawyer should 
succeed in his skilful move, and the measure 
never came to vote. Had his manoeuver been 
supported, it is more than possible that the great- 
est issue of our time would have been judicially 
decided instead of being left to the arbitrament 
of arms. 

At the close of the congressional session Lin- 
coln visited New England for the first time, 
making political addresses for Taylor at Boston, 
Dedham, Roxbury, Cambridge, and other places, 
and his speeches attracted some favorable notice ; 
but after a short tour he returned to Springfield, 
resolved to retire from politics at the end of his 

156 



IN CONGRESS 

congressional term. Undoubtedly he could have 
had a renomination had he so desired, but he felt 
himself pledged not to seek a second term. "I 
can say, as Mr. Clay said of the annexation of 
Texas," he wrote, "that 'personally I would not 
object' to a reelection, although I thought at the 
time, and still think, it would be quite as well to 
return to the law at the end of a single term. 
... If it should happen that nobody else wishes 
to be elected, I could not refuse the people the 
right of sending me again. But to enter myself 
as a competitor of others, or to authorize any one 
so to enter me, is what my word and honor for- 
bid." 

Somebody else did, however, desire to be 
elected, and Lincoln heartily seconded Judge 
Logan's ambition. But Logan did not possess 
his ex-associate's personal charm, and only a man 
of strong personal magnetism could have won 
for the Whigs in that year, and the judge was 
hopelessly defeated. 

In March, 1849, Lincoln's official term 
expired, and then for the first and only time in 
his life he became an applicant for office. The 
post he desired was the commissionership of the 
General Land Office in Illinois, but Justin But- 

157 



LINCOLN THE LAWYER 

terfield, a fellow-member of the bar from Chi- 
cago was appointed, and Lincoln was afterward 
offered, and fortunately declined, the gover- 
norship of Oregon, returning to Spring- 
field and the practice of the law, num- 
bering among the clients whom he had 
acquired in Washington no less a person 
than Daniel Webster, 1 a somewhat authoritative 
recognition of Lincoln as a lawyer. 

1 Mr. Ben: Perley Poore is authority for the statement that 
Webster insisted that Lincoln charged him too little for his 
services, and that he always felt himself in his counsel's debt. The 
matter on which he had retained him involved clearing the title 
to certain real estate in an embryo city (probably Rock Island 
City) laid out where Rock River empties into the Mississippi. 



158 





■T^y/v 



XVI 

LIFE ON THE ILLINOIS CIRCUIT 

IT has been repeatedly asserted that Lin- 
coln's legal reputation was entirely local, 
and that he was unknown as a lawyer 
beyond his immediate neighborhood; yet 
it is a fact that he had no sooner an- 
nounced his intention to resume practice 
than he was offered a partnership by Mr. 
Grant Goodrich, one of the prominent attorneys 
of Chicago, with a wide and lucrative clientage. 
Lincoln had an idea, however, that he was threat- 
ened with consumption, and fearing that city 
work would undermine his health, he declined 
the proposal and returned to his old office in 
Springfield. 

There is no evidence, except his own, that 
Herndon maintained anything more than a nom- 
inal practice after he was left to his own devices ; 
but nevertheless Lincoln offered to continue the 

161 



LINCOLN THE LAWYER 

partnership with him on the same generous terms 
which had governed their original alliance, and 
in the spring of 1849 the firm of Lincoln & 
Herndon again started in business, with head- 
quarters in a little three-story building on the 
west side of the public square of Springfield, 
about where the Myers Building now stands. 
The office was neither pretentious nor commodi- 
ous, but it met the requirements of the times, and 
its equipment, though meager, would compare 
very favorably with that of many a country law 
office of the present day. Lincoln saw but little 
of this official work-room, however, for he left 
all matters of routine and local business to Hern- 
don and devoted himself to circuit work — the 
most picturesque practice of the law which is 
recorded in the legal annals of this country. 

Illinois in 1849 was divided into nine judicial 
districts, each presided over by a judge who 
traveled from one county-seat to another within 
his jurisdiction, hearing civil and criminal 
cases and acting as an appellate tribunal 
for minor causes decided by justices of 
the peace, and during the greater part 
of the year these judges were continually on 
their rounds, followed by the members of the 

162 



LIFE ON THE ILLINOIS CIRCUIT 

local bar. 1 In early times the condition of the 
roads forbade the use of wheels, and the judge 




Drawn by Harry Fenn 

Original offices (on the second floor) of 
Lincoln & Herndon— exterior 

made his trips on horseback, accompanied by a 
cavalcade of lawyers who forded the streams and 
defied the weather in the interest of their clients, 

1 Prior to 1848 the circuit judges convened twice a year at 
Springfield and sat as a court of appeal (called the Supreme 
Court) to pass on judgments of the circuit courts sent them for 

10 163 



LINCOLN THE LAWYER 

making light of many hardships in their zeal for 
the profession, and forming a gay if not very 
learned company, warmly welcomed and hon- 
ored in every county-seat. 

Before his election to Congress, Lincoln had 
been one of the equestrian retinue of the Hon. 
Samuel Treat, who at that time presided over 
the destinies of the Eighth Judicial Circuit, and 
the big leather saddle-bags 1 which carried the 
lawyer's papers and belongings are in existence 
to-day; but by 1849 wheels could be used with 
some comfort in traveling, and when Lincoln 
resumed his professional duties a procession of 
buggies and carry-alls marked the progress of the 
court. 

It was an open and sparsely settled country 
through which the judge and lawyers journeyed 
in those days, a country almost skirting the wil- 
derness from which it had been only recently 
reclaimed, a new, free, wind-swept, and in many 

review, each judge withdrawing, of course, while his own de- 
cisions were under consideration. After 1848, however, three 
Supreme Court judges were appointed, who performed no circuit 
work, and the sessions of the court were held not only at Spring- 
field, but also at Ottawa and Mount Vernon. 

i The Hon. Robert Lincoln told the writer that he distinctly 
remembers seeing his father start out on horseback, with his 
saddle-bags, to accompany the judge on the circuit. 

164 




Hon. Samuel H. Treat 

Judge of the old 8th Illinois Circuit 



LIFE ON THE ILLINOIS CIRCUIT 

respects beautiful country, rich with promise and 
possibility. Vast stretches of wonderful prairie- 
land rolled between the little towns which served 
as the centers of government for the respective 
counties, and so great were the distances that sev- 
eral days were sometimes consumed in traveling 
from point to point. In 1849 the Eighth Circuit 
included no less than fourteen counties,— Sanga- 
mon, Tazewell, Woodford, McLean, Logan, 
DeWitt, Piatt, Champaign, Vermilion, Edgar, 
Shelby, Moultrie, Macon and Christian, — and 
its dimensions were at least a hundred and ten 
by a hundred and forty miles. To-day there are 
eighteen judges doing duty in the district cov- 
ered by one justice in the early fifties, and it is 
not surprising that Lincoln's attendance on the 
circuit occupied him at least six months of every 
year. Not many lawyers devoted themselves to 
the work as closely as he did. Some confined 
their attention to a few counties, others traveled 
half the circuit, and others even further; but Lin- 
coln was the only member of the bar who, year 
after year, accompanied the judge through the 
entire district. 

The custom of riding the circuit was, of course, 
born of necessity, for in the early days there was 

167 



LINCOLN THE LAWYER 

not sufficient legal business in any one of the 
small communities to support a lawyer, to say 
nothing of a law firm. People who wanted to 
begin lawsuits usually sought their advisers in 
the largest town in their vicinity, or waited the 
arrival of the circuit judge and the attend- 
ant bar, when they could look over the field 
and pick out the most available champion. Fre- 
quently, however, the local attorneys were re- 
tained to prepare the papers, with instructions to 
select a suitable man for the court work when the 
circuit-riding bar arrived on the scene. There 
was therefore an excellent chance of securing 
good business by constant attendance on the 
itinerant court, and the lawyer who visited all 
the counties was certain to be more widely known 
than any of his fellow-practitioners. At the 
time of Lincoln's second partnership with Hern- 
don, however, such work was more a matter of 
choice than necessity. Doubtless the firm could 
have made a satisfactory income had the senior 
partner devoted himself to the courts nearest his 
home and maintained a branch office in the dis- 
tant counties, as other lawyers did; but he liked 
the freedom of the road, and the happiest days 
of his life were those he passed on these long 
legal tours. 

168 




Map of Illinois 

The shaded portion indicates the circuit of Lincoln's law practice 

The Eighth Circuit, as organized under the provisions of the Illinois Session Laws of 1847, page 
31, is shown by the shaded area on the above map. Later (in 1853) it was reduced to Sangamon, 
Logan, McLean, Woodford, Tazewell, DeWitt, Champaign, and Vermilion counties (Illinois 
Session Laws, 1853, page 63); and in 1857 it was further reduced to DeWitt, Logan, McLean, 
Champaign, and Vermilion counties (Illinois Session Laws, 1857, page 12). Even after Sangamon 
county was transferred to another circuit, Lincoln still continued to travel the Eighth. 



LINCOLN THE LAWYER 

Traveling the circuit was comparatively com- 
fortable in the fifties, but it still lacked some- 
thing of the luxurious, and at times it involved 
hardships which could be surmounted only by the 
best of health and spirits. 

The judge and his flock usually started out 
from the State capital as soon as the roads 
admitted of travel in the early spring, and drove 
to the nearest county-seat on their route. At 
times his Honor traveled alone, but frequently 
some member of the bar occupied a seat in his 
carriage, and the other lawyers made their way 
to the rendezvous as best they could, three or 
more often clubbing together and hiring a con- 
veyance for the trip. Lincoln sometimes trav- 
eled with these small parties, but after the first 
year or so he maintained a horse and buggy of 
his own, both of which were pretty "wobbly" 
according to Judge Weldon, with whom they 
were left when their owner took to the iron steed. 

But Illinois railroads connected only the cen- 
ters of population in the early fifties, and the 
county-seats on the Eighth Circuit were not 
much more than villages. Each bore a family 
resemblance to the other, and all were strongly 
suggestive of the typical New England hamlet. 

170 



LIFE ON THE ILLINOIS CIRCUIT 

The settlement almost invariably clustered 
around a public square of generous dimensions, 
in the center of which stood the court-house, a 




Drawn by Harry Fenn from a photograph 

Old court-house at Metamora, Woodford County, Illinois 
Lincoln practised in this building, which is now used as a town hall 

substantial building of brick or stone. The 
square itself was guarded from the highroad by 
a series of wooden hitching-rails, and teams of all 
sorts nosed this fence from the opening to the 
closing of the term; for business and pleasure 
both demand the attendance of the whole county 

171 



LINCOLN THE LAWYER 

on court-days, and shelter for the horses and 
wagons was frequently unobtainable. Even the 
lawyers had difficulty in finding accomodations 
for their animals ; and as the supply of labor was 
extremely limited, those who traveled in private 
rigs often had to be their own hostlers. 

The stable facilities, however, were not infre- 
quently superior to those of the hotels. Some- 
times the tiny taverns which attempted to house 
the visitors boasted only one habitable room, and 
as this was invariably reserved for the judge, 
the lawyers not included in his hospitality had to 
sleep anywhere they could — on the sofas, the 
tables, the window-seats, the floor, and even in 
the lofts and horse-stalls. It was no uncommon 
thing for his Honor to invite three or four men 
to occupy his room, but the one who was selected 
to share Judge Davis's bed might about as well 
have slept on the floor, for that jurist was al- 
most as wide as the ordinary four-poster. Lin- 
coln and he made a fair average as far as width 
was concerned, but as the former was six feet 
four and had to lie crosswise to fit in the average 
bed, their combination was not a pronounced 
success. 

In the dining-room the tavern-keeper usually 
172 



LIFE ON THE ILLINOIS CIRCUIT 

reserved one end of the long table for the bar, 
and the judge was always expected to preside at 
the head of the board; but the function was fre- 
quently a Barmecide feast, and, as Lincoln 




Drawn by Harry Fenn from a contemporary print 

Original offices of Lincoln & Herndon— interior 

remarked, there was very little advantage in sit- 
ting at the head of the table unless the food 
improved as you moved up. Except for this dis- 
tinction as to place, there was no difference made 
between the legal fraternity and the other guests 
of the hotel, and litigants, witnesses, jurors, and 
prisoners out on bail were accommodated at the 

173 



LINCOLN THE LAWYER 

same table and enjoyed the same fare. Indeed, 
Mr. Whitney recalls several persons actually on 
trial who not only took their meals with his 
Honor and the bar, but also spent their evenings 
in the judge's room, without the slightest embar- 
rassment to any one. 

The inconvenience and discomforts of the life 
were at times almost unbearable, but Lincoln 
was never known to join in the frequent protests 
and complaints of his associates. Indeed, his 
sense of humor often saved the situation and 
made it tolerable, if not enjoyable, for himself 
and others. He saw the comic side of all that 
irritated men of more nervous temperament, and 
disposed of annoyances with a laugh so hearty 
and infectious that even the disgruntled victims 
of petty misfortunes had to join in his mirth. In 
an indolent, easy manner he studied the various 
types of human nature encountered on the road, 
took a direct personal interest in the people he 
met, and made friends at every stopping-place. 
All the court clerks and county officials were 
glad to see him come and sorry to have him 
depart; he had a warm welcome at every tavern 
door and all sorts and conditions of men claimed 
his close acquaintance. But, despite this general 

174 



LIFE ON THE ILLINOIS CIRCUIT 

popularity, Lincoln was not, as he has frequently 
been depicted, an irresponsible hail-fellow-well- 
met, familiarly known as "Abe," who went 
about slapping people on the back and encourag- 
ing similar salutations. Nothing could be fur- 
ther from the truth than this. Judge Weldon 
informed the writer that in all his acquaintance 
with Lincoln on the circuit, the only person he 
ever heard address him by his first name was a 
street urchin whose impertinence astonished the 
future President quite as much as it amused him, 
and there is no reason to believe that he courted 
such familiarities after he reached maturity. Cer- 
tainly his correspondence shows that he almost 
invariably addressed people by their last names 
— even his most intimate friends like Speed and 
Davis; and although Herndon relates anecdotes 
in which he figures as "Billie," Lincoln's letters 
refer to him as Herndon or William, although 
he was a much younger man than his partner 
and something of a protege. 

This is not at all suggestive of the arm- 
around-the-neck familiarity with which Lincoln 
is credited, and, as a matter of fact, he admitted 
very few friends to his confidence, and his inti- 
mates never numbered more than two or three. 

175 



LINCOLN THE LAWYER 

He was undoubtedly easy-going, pleasant- 
spoken, cordial, unconventional, and entirely ap- 
proachable, but he had his own distinctive barrier 
of dignity which no one ever surmounted. 

It is easy to understand the fascination of the 
circuit life. The members of the bar formed a 
bright, congenial company who strove mightily 
with each other in the court-rooms, but ate and 
drank as friends. They were persons of credit 
and renown in the eyes of all the assembled coun- 
try-side, oracles to the political gossips, and 
leaders of public opinion whose words were often 
law. Every man knew every other man, and the 
close, daily contact in the court-rooms and on the 
road created a spirit of comradeship which no 
mere professional interest could supply. There 
was little of dull routine in the life, less of cold 
formality, nothing of the anxieties and cares 
which characterize modern practice, and the 
"play-instinct," which few men ever entirely out- 
grow, was strongly in evidence at every term of 
court. One group of the merry company founded 
a mock tribunal which formulated all sorts of 
ridiculous charges against their fellow-prac- 
titioners and tried the offenders with burlesque 
pomp and severity, to the delight of all beholders. 

176 



LIFE ON THE ILLINOIS CIRCUIT 

Others were good at song and story, and many of 
the evenings passed in the judge's private room 
were all-night sessions of mirth and good-fellow- 
ship which made for lasting friendship and an 
esprit de corps destined to have a marked effect 
upon more than one career. The whole atmosphere 
of the profession favored individuality, self-ex- 
pression, and development, and Lincoln re- 
sponded to all these encouraging influences. He 
was distinctly a human product, and his growth 
of mind and character was most happily fostered 
by the free life of the circuit, where he was in 
close touch with a vigorous, independent, unarti- 
flcial people drawn from every part and class of 
the country and all representatively American. 
Theirs was the force which really molded the 
man at the formative period of his career, and 
the most important individual influence on his 
future may be fairly ascribed to the judge before 
whom he practised and with whom he virtually 
lived for ten successive years. 



177 



XVII 

JUDGE DAVIS AND LINCOLN 

JUDGE DAVID DAVIS was a lawyer of 
marked ability and strong individuality, 
a shrewd business man, a loyal friend, a violent 
partizan of generous impulses and deep-rooted 
prejudices, an arbitrary and even despotic ruler 
of his own domain, but a fearless administrator 
of the law and an absolutely honest and capable 
judge. He and Lincoln had met as lawyers in 
Springfield, but there does not appear to have 
been any intimacy between them until Lincoln 
resumed practice at the close of his congressional 
term, when their acquaintance speedily devel- 
oped into a friendship of enduring quality and 
historic importance. 

The relations of the bench and bar were neces- 
sarily much closer in the early fifties than they 
are to-day, and the lawyers of the Eighth Cir- 
cuit were practically a big family of which 

178 




V 



Hon. David Davis 

Judge of old 8th Illinois Circuit. Later an Associate Justice of the Supreme Court 
of the United States 



JUDGE DAVIS AND LINCOLN 

Davis was the official head, and over which he 
exerted a really parental influence. Not only 
did his Honor's ample girth and other physical 
proportions suggest a paterfamilias, but his 
mental attitude toward the bar was at once dom- 
ineering and fatherly, with the domineering ele- 
ment always prominent. "He used to remind 
me of a big schoolmaster with a lot of little boys 
at his heels whenever I saw him stumping toward 
the court-house," remarks a now distinguished 
lawyer, and it cannot be denied that there was 
a good deal of the pedagogue about the judge. 
Certainly he knew how to maintain order in his 
court, but there was always more tact than sever- 
ity in his enforcement of discipline. "Mr. Sher- 
iff, you will see that nobody except General Lin- 
der is allowed to smoke in my court," was his 
method of administering a rebuke to the Attor- 
ney-General of Illinois, and hints of this kind 
seldom went astray. But though he insisted 
upon maintaining the dignity of his office upon 
every proper occasion, he dispensed with all 
unnecessary etiquelte, and outside the court- 
room he was democratic to the last degree. 

Almost every man, woman, and child in the 
fourteen counties of his circuit knew Judge 

181 



LINCOLN THE LAWYER 

Davis, and he undoubtedly was personally 
acquainted with a greater number of the resi- 
dents than any other one man in the district. It 
naturally followed that he knew the jurors who 
were selected by the sheriff, and in some counties 
the same men composed the jury term after 
term. They were his friends, but the idea that 
they would be subservient to his wishes on this 
account, or that he would attempt to take ad van - 
tage of their friendship to impose his author- 
ity upon them, never, apparently, entered any 
one's head. On the contrary, he relied on the 
intelligence, fairness, and integrity of the tales- 
men to a far greater extent than is practical in 
modern courts; but if there was the slightest 
cause for suspecting that a litigant would not 
receive an impartial verdict at their hands, he 
promptly removed the case into another circuit, 
and he governed himself by the same strict rules 
which he applied to the juries. In the minutes 
of the court in Tazewell County the writer dis- 
covered a significant entry, evidently in Davis's 
handwriting, written opposite the case of Hall 
v. Woodward, reading somewhat as follows: 
"Jury disagreed. Venue changed on account of 
the prejudice of the judge." 

182 



JUDGE DAVIS AND LINCOLN 

But though he was impartial in all his official 
duties, his Honor was a man of strong likes and 
dislikes, and he took no pains to conceal his feel- 
ings toward the different members of the bar. 
Lincoln, Leonard Swett, Judge Logan, and a 
few others continually basked in the sunshine of 
his approval; but Lincoln was the prime favorite 
of the privileged clique which made the judge's 
room its headquarters, and almost from the first 
he was distinguished at every possible oppor- 
tunity in a way which would have been fatal 
to the average man. More than one of the 
judge's coterie has testified that his Honor 
would brook no interruption of the conversation 
when Lincoln had the floor; and if his favorite 
happened to be absent, he took but little interest 
or enjoyment in the rest of the company which 
gathered at his rooms. "Where 's Lincoln?" 
he would inquire irritably. "Here, somebody, go 
and tell Lincoln to come here." 

Under such circumstances it is nothing short 
of remarkable that the man was not loathed 
instead of loved by the rank and file of the pro- 
fession. He was naturally unassuming, but 
until he came into contact with Judge 
Davis he had never been placed in a position 

11 183 



LINCOLN THE LAWYER 

of much power. Davis, however, recognized 
the masterly quality of his mind, and his views 
and arguments soon began to have more weight 
and influence with the court than those of any 
other member of the bar. His Honor had too 
much individuality and independence actually to 
defer to any one else's opinion, but his favorite 
always had the ear of the court, and this in itself 
gave him a commandingly important position. 

"It is easy for the weak to be gentle," writes 
a distinguished student of human nature. "Most 
people can bear adversity. But if you wish to 
know what a man really is, give him power. 
That is the supreme test." 

No one but an experienced lawyer can appre- 
ciate the immense power wielded by the advocate 
on whom the bench relies. The mere fact that 
he has the private ear of the court is, in itself, a 
temptation which has proved too much for more 
than one distinguished member of the bar; and 
though the judge be never so honest and impar- 
tial, there are countless forms in which the per- 
sonal equation may be invoked. The average 
practitioner who occupies this post of vantage 
seldom makes any effort to guard himself 
against a misuse of his opportunities. He does 

184 



JUDGE DAVIS AND LINCOLN 

not hesitate to arrogate to himself small licenses 
which he knows will not be denied ; he crowds and 
overbears adversaries less fortunately situated, 
and generally asserts himself at their expense. 
Every court-room in the world harbors these privi- 
leged bullies. Not all of them, of course, make 
a brutal display of their powers. Many are 
extremely subtle in bringing the necessary pres- 
sure to bear, and some are mentally so consti- 
tuted that they are not conscious of exerting any 
offensive influence against their fellow-practi- 
tioners. But in ninety-nine cases out of a hun- 
dred the leaders of the bar yield to temptations 
which Lincoln resisted, and few have ever been 
tested as he was. Yet he worked in an atmos- 
phere of this sort for ten years, schooling him- 
self against the open favor of the court; and of 
such training and temptations there came to the 
nation's guidance a master of infinite tact. 

Not only did he refrain from imposing him- 
self upon his contemporaries, but younger mem- 
bers of the profession received every possible 
consideration at his hands. It is the universal 
testimony of those who met him in daily practice 
that he never wantonly sought to exalt himself at 
the expense of a fellow-practitioner, and his ju- 

185 



LINCOLN THE LAWYER 

niors constantly retained him to aid them in cases, 
without the slightest fear that he would attempt 
to overshadow them, take the credit for vic- 
tory, or shelve responsibility for a defeat. 

"The first case I ever had in Tazewell County 
was the People v. Gideon Hawley," remarked 
Mr. James Haines 1 while talking with the writer. 
"There were thirty-two indictments against my 
client for obstructing a public road, and as the 
authorities were inclined to make an example, the 
case was somewhat serious. I retained Mr. Lin- 
coln to conduct the defense, and after we had 
completed our preparations he said, 'Of course 
you will make the opening speech.' I was sur- 
prised, for I had supposed that he would want to 
assume full control, and I said as much, adding 
that I would prefer him to take the lead. 'No,' 
he answered; and then laying a hand on my 
shoulder, he continued: T want you to open the 
case, and when you are doing it talk to the jury 
as though your client's fate depends on every 
word you utter. Forget that you have any one 
to fall back upon, and you will do justice to 
yourself and your client.' I have never forgot- 

i Mr. Haines is now living in Pekin, Tazewell County, and the 
court-house, which is still standing in that county, and in which 
Mr. Lincoln practised, was erected under his supervision. 

186 



JUDGE DAVIS AND LINCOLN 

ten the kind, gentle, and tactful manner in which 
he spoke those words," Mr. Haines continued; 
"and that is a fair sample of the way he treated 
younger members of the bar." 



^j^gte f -pg^- 




,. 



,'-'■ 



&b&-t-T: 



mm^mm 



m 



if 



-v : 



m 




,.~>^. : j 



-Mtf Court-room, Tazewell Co., Illinois, 
in which Lincoln practised and 
which is still used for sessions 
of the circuit court 



This, with other testimony of a similar nature, 
shows the man in the making; and no one who 
is familiar with Lincoln's subsequent conduct as 
Commander-in-chief of the army can fail to 
recognize the bearing of his professional training 
upon his official actions. Again and again he 
assumed all responsibility for the blunders of his 

187 



LINCOLN THE LAWYER 

generals, and it will be remembered that when 
Grant succeeded he instantly wrote him, not only 
disclaiming any share of the credit, but acknowl- 
edging that the executive had doubted the wis- 
dom of his plans. 

Judge Davis's confidence in Lincoln's ability 
was evidenced at all times, but it often took a 
form which must appear nothing less than amaz- 
ing to the modern practitioner, for he frequently 
assigned Lincoln to the bench and left him to 
conduct the court in his absence. There has been 
considerable doubt expressed by some biographers 
as to whether or no Lincoln did actually preside in 
a judiciary capacity, but there is not the slightest 
question about the matter. Judge Weldon 
informed the writer that he personally tried a 
jury case with Lincoln on the bench, and Mr. 
Whitney asserts that the future President once 
conducted an entire term of court in Champaign 
County. Moreover, there is in existence to-day 
a judgment in Lincoln's handwriting which was 
written by him in a case in which he presided as 
the trial judge. This practice was, of course, 
irregular, and it is said that two cases were 
reversed by the Supreme Court because of it; 
but Judge Weldon told the writer that Lincoln 

188 



JUDGE DAVIS AND LINCOLN 

never presided at a trial unless the attorneys for 
both parties consented, and that they were gen- 
erally glad to do so, for in this way delays were 




Drawn by Harry Fenn from a photograph 

Old court-house at Pekin, Tazewell County, Illinois 

Lincoln practised in this building, which is well preserved 
and the sessions of the Circuit Court are still held in it 

avoided and the clients and witnesses accommo- 
dated when Davis was unable to hold court. 

The unofficial character of the position, how- 
ever, made great demands upon Lincoln's tact, 
and he had to display rare judgment in exercis- 

189 



LINCOLN THE LAWYER 

ing his authority. On one such occasion some 
young attorneys attempted to embarrass him 
with technical devices in a case in which there was 
no real defense. Lincoln heard them with the 
utmost good-nature and patience, and finally, 
when they had kept up their tactics for a whole 
day, he gave a decision in favor of the plaintiff, 
and wrote the direction for judgment in such 
form that there was no possible chance for an 
appeal. "But how are we to get this up to the 
Supreme Court?" asked one of the attorneys 
when he found himself cornered. "Well, you Ve 
all been so smart about this case," answered Lin- 
coln, calmly, "that you can find out for your- 
selves how to carry it up"; and that ended the 
matter. 

Lincoln's earnestness and sense of responsi- 
bility deepened as he found himself relied upon 
as a leader of the bar; and as the years went by 
he grew more and more grave, meditative, and 
given to mental abstraction. 

"He would frequently lapse into reverie and 
remain lost in thought long after the rest of us 
had retired for the night," Judge Weldon told 
the writer; "and more than once I remember 
waking up early in the morning to find him sit- 

190 



JUDGE DAVIS AND LINCOLN 

ting before the fire, his mind apparently concen- 
trated on some subject, and with the saddest ex- 
pression I have ever seen in a human being's eyes." 

**? \ 

From the collection of Major William H. Lambert 

Facsimile of a judgment written by Mr. Lincoln while acting 
in the place of Judge Davis 

No one knows with what thoughts Lincoln 
was struggling in those hours, but this side of 
his character has almost disappeared under the 
mass of silly stories which are coupled with his 
name. One would think, to read some of the bio- 
graphies, that he never had a serious moment, 

191 



LINCOLN THE LAWYER 

and that most of his life on the circuit was spent 
in retailing dubious stories to gaping circles of 
country-folk at wayside taverns. Indeed, one 
chronicler states that he was frequently pitted 
against the local champion raconteurs in story- 
telling tournaments which continued for days, 
but which never could have lasted long enough 
to furnish all the pointless jests which seek to 
illustrate his fame as a fun-maker. 

Lincoln was a wit, and, as Ingersoll said, he 
used any word "which wit could disinfect," but 
his reputation has suffered at the hands of writ- 
ers who have employed stories as stop-gaps in 
their information. Of course, it is far easier and 
more amusing to attribute a lively story to Lin- 
coln than to give a true picture of the man; but 
the compilations which have been evolved on this 
principle, and which picture his life on the cir- 
cuit as a round of story-telling, are made out of 
whole cloth— some of which is stolen goods. 

"Nothing can be more absurd than to picture 
Lincoln as a combination of buffoon and drum- 
mer," protested one of his surviving contem- 
poraries while discussing this subject with the 
writer. "He was frequently the life of our little 
company, keeping us good-natured, making us 

192 



JUDGE DAVIS AND LINCOLN 

see the funny side of things, and generally enter- 
taining us; but to create the impression that the 
circuit was a circus of which Lincoln was the 
clown is ridiculous. He was a lawyer engaged 
in serious and dignified work, and a man who felt 
his responsibility keenly." 

Probably there is no one living who is better 
entitled to speak on this subject than Mr. James 
Ewing, a member of the Illinois bar, whose 
father kept the old National Hotel in Blooming- 
ton, where all the lawyers used to stop while on 
the circuit, and at whose house Lincoln boarded 
after the hotel was closed. Mr. Ewing was 
about nine years old when Lincoln first stayed 
at the National, and for six or seven years after- 
ward he saw and heard him in the company of 
his associates almost every term of court. "In 
all my experience," Mr. Ewing informed the 
writer, "I never heard Mr. Lincoln tell a story 
for its own sake or simply to raise a laugh. He 
used stories to illustrate a point, but the idea that 
he sat around and matched yarns like a commer- 
cial traveler is utterly false. I never knew him to 
do such a thing, and I had ample opportunity 
for noting him." 

"Lincoln would soon have become a bore if he 
193 



LINCOLN THE LAWYER 

had traded on his story-telling gifts," remarked 
another authority. "He traveled with the same 
men day after day, week after week, and month 
after month. Even if his fund of anecdotes 
could have stood the strain, we should not have 
been able to endure it, for no man exhausts him- 
self or others so quickly as your professional 
funny man." 

But those who have depicted Lincoln on the 
circuit as a sort of end-man with an itinerant 
minstrel show, have also done a similar injustice 
to Davis. More than one scissors-and-paste-pot 
biographer encourages the inference that it 
was Davis's partiality for broad stories which 
caused him to distinguish Lincoln, and we 
are expected to believe that this was the 
edifying origin of the friendship of these 
two distinguished men. 1 Undoubtedly Davis 
enjoyed a good story, and it may well 
be conceded that his laugh was as loud and infect- 
ious as tradition says it was; but to suppose that 

i Judge Davis, who was three times elected to the Illinois Cir- 
cuit Bench (1848, 1855, and 1861), was appointed an associate 
justice of the Supreme Court of the United States in 1862, and 
served on that bench with distinction until 1877, when he resigned 
to become a United States senator from Illinois. He became 
acting vice-president in 1881, and resigned in 1883. He died at 
Bloomington, Illinois, June 26, 1886. 

194 



JUDGE DAVIS AND LINCOLN 

a man of his ability would select a mere jester 
for a friend, or that Lincoln would have con- 
sented to serve as a court fool, is preposterous. 

Davis had precisely the mental qualities which 
were best adapted to encourage and develop a 
man of Lincoln's temperament. He recognized 
his great ability, admired his modesty, respected 
his integrity, esteemed his judgment, and helped 
to school his legal aptitude. He knew the power 
of the man — knew it through ten years' associa- 
tion with him in the court-room; and it was this 
knowledge, gained in this way, which formu- 
lated his unconquerable belief in the Illinois can- 
didate for the Presidential nomination. It was 
Judge Davis and a handful of men who had 
learned to know and appreciate Lincoln as a 
lawyer— a small group of his fellow -practi- 
tioners on the Eighth Circuit: Davis, the judge; 
Swett, the advocate; and Logan, the leader of 
the bar, but especially Davis— who forced Lin- 
coln upon the Chicago Convention in 1860, and 
thus gave him to the nation. 



195 



XVIII 



LEADER OF THE BAR 



LINCOLN did not return to any assured 
clientage at the close of his congressional 
term, and he had his professional reputation still 
to make when he began to follow Judge Davis 
over the circuit. He had had a fairly wide 
acquaintance in the community before he went to 
Washington, but the State was rapidly increasing 
in population, and to the newcomers he was, of 
course, an utter stranger. Even to the majority 
of the old inhabitants, he was better known as a 
stump-speaker and politician than as a lawyer; 
and, recognizing this, he set to work with a single- 
ness of purpose which had not previously charac- 
terized his interest in the law. We have his own 
word for it that he had then definitely deter- 
mined to abandon public life, and his most inti- 
mate professional associates testify to a marked 
change in his attitude toward his work from this 
time on. Thenceforward he bent all his energies 

196 



LEADER OF THE BAR 

upon equipping himself for his legal duties, pre- 
paring his cases with greater care, fortifying 
himself with reading, and generally becoming 
more systematic in his studies. It was probably 
at this time that he began entering notes of cases 
and authorities in a memorandum-book which he 
carried with him on the circuit, and which pro- 
vided him with a ready reference at moments 
when it was not possible to procure law reports 
or text-books. 1 His preparation, however, did 
not stop at legal learning. He began the study of 
the German language, and was interested in any- 
thing which could develop his mind, and he did 
not abandon any sub j ect once he touched upon it. 
"In the course of my reading," he told a friend 
years afterward, "I constantly came across the 
word 'demonstrate.' I thought at first that I 
understood its meaning, but soon became satis- 
fied that I did not. I consulted Webster's dic- 
tionary. That told me of certain proof beyond 
the probability of doubt, but I could form no 
idea of what sort of proof that was. I consulted 
all the books of reference I could find, but with 

i This memorandum-book is now in the possession of Mr. Jesse 
W. Weik, through whose courtesy the writer was allowed to ex- 
amine its copious citations and notes. 

197 



LINCOLN THE LAWYER 

no better results. You might as well have 
defined blue to a blind man. At last I said to 
myself, 'Lincoln, you can never make a lawyer 
if you do not know what "demonstrate" means,' 
and so I worked until I could give any proposi- 
tion of the six books of Euclid at sight. I then 
found out what 'demonstrate' meant." 

This study was performed at odd intervals 
while he was engaged in trial work on the circuit, 
and Herndon reports that he frequently saw 
Lincoln poring over his Euclid by candle-light 
at night in his bedroom, where three or four other 
men were sleeping after a hard day's work in the 
courts. It was discipline of this quality which 
developed and strengthened the man's mind at 
his most critical period, and his growth as a law- 
yer followed as a natural result, though he him- 
self never made the slightest claim to legal emi- 
nence. "I am only a mast-fed lawyer," he once 
protested, meaning that his mind had not been 
nourished with the sort of educational provender 
which rounds out the ribs of aptitude, and this 
recognition of his deficiencies redoubled his 
efforts. At one time he had apparently thought 
that his ability as a speaker would carry him 
through, but doubtless his experience with 

198 



LEADER OF THE BAR 

Logan and other able lawyers taught him to mis- 
trust his powers in this respect, and his advice to 
some law students, written in July, 1850, shows 
his altered attitude. "Extemporaneous speaking 
should be practised and cultivated/'' he remarked. 
"It is the lawyer s avenue to the public. How- 
ever able and faithful he may be in other respects, 
people are slow to bring him business if he can- 
not make a speech. And yet there is not a more 
fatal error than relying too much on speech-mak- 
ing. If any one, upon his rare powers of speak- 
ing, shall claim an exemption from the drudgery 
of the law, his case is a failure in advance." 

But even with close application to business and 
the unmistakable favor of the court, Lincoln did 
not rise to any immediate recognition at the bar. 
His ability was of slow growth, and there was 
nothing showy or impressive about his practice 
in the courts. Little by little, however, it began 
to dawn upon the local public that he was the 
most uniformly effective man of all those who 
practised on the circuit, not only with the court, 
but with the juries; but it was the lawyers who 
first evidenced the discovery by retaining him to 
try cases for them. 

The. confidence and appreciation of his com- 

12 199 



LINCOLN THE LAWYER 

petitors is the highest compliment which any law- 
yer can receive, and it was this professional 
recognition which largely determined Lincoln's 
subsequent career, for it enabled him to leave all 
the minutiae of practice and the drudgery of 
preparation to other lawyers and to devote him- 
self almost exclusively to trial work. The result 
was that, although he had probably a wider 
acquaintance than any other practitioner on the 
circuit, he had comparatively few personal clients, 
most of his business coming through other attor- 
neys, who either retained him of their own initia- 
tive or at the suggestion of the litigants. Indeed, 
his reputation as an advocate became such that 
some attorneys advertised themselves as his part- 
ners ; but this merely meant that they usually re- 
tained him to try their cases, or possibly that they 
had some general understanding with him that he 
would act as counsel for them during certain 
terms of court or in particular counties. It thus 
frequently happened that Lincoln knew nothing 
of either his cause or his client until he arrived 
at the county-seat where the trial was to be held, 
and as a term of court seldom lasted more than 
a few days, he had very little opportunity to pre- 
pare himself. 

200 



LEADER OF THE BAR 

If the local attorney who retained him had an 
office, he made that his headquarters; but, if, as 
often happened, there was no such accommoda- 
tion available, the necessary consultations took 
place in the tavern, usually in the judge's private 
room, and regardless of his Honor's presence. 
Frequently, however, the conference was held 
out of doors to avoid interruptions, and it was no 
uncommon thing for Lincoln to be seen seated 
on the ground under the shade of some conve- 
nient tree in the court-house square, consulting 
with his associates, their clients and witnesses. 
Of course important litigations were not pre- 
pared in this haphazard fashion, but very few 
lawsuits in those days were complicated, and both 
sides usually wanted a prompt trial of the mat- 
ter in dispute. 

This class of work naturally brought Lincoln 
into close touch with all sorts of men and women, 
and trained him to be a quick and unerring 
judge of character. Each case was a distinct 
problem replete with human nature, and it was 
doubtless this constant insight into the springs 
and sources of human action which developed 
his instinctive understanding of the people and 
taught him to anticipate and lead popular opin- 

201 



LINCOLN THE LAWYER 

ion as no other public man in this country had 
ever done. 

It is probable that Lincoln tried more cases 
between 1849 and 1860 than any other man on 
the Eighth Circuit. He was the acknowledged 
leader of the local bar, whose services were con- 
stantly in demand, and the one man who could 
be relied upon to take a case in any of the coun- 
ties comprising the circuit, for he alone covered 
the entire route. It is misleading to belittle the 
value of this daily experience on the ground that 
most of the litigations were of no great mone- 
tary importance. Every lawyer familiar with 
trial work knows that small cases often raise 
more difficult questions of law and demand nicer 
knowledge of legal principles than causes on 
which millions depend; and it should also be 
remembered that many of the small suits were, 
in effect, test cases which settled the law for the 
new State. 

Of course no one could have practised before 
the court and juries day after day and year after 
year in this way without learning something, and 
Lincoln's legal development was marked with 
every year of his practice. In 1853 the Illinois 
Central Railroad retained him as its counsel, and 

202 




From a photograph 

Portrait of Lincoln 



LEADER OF THE BAR 

not long afterward he appeared for the Rock 
Island Road and many other important represen- 
tative interests, and his record of appeal cases 
in the Supreme Court is equalled by but few 
members of the Illinois bar. 

It is impossible to overestimate the value of 
these active professional years on Lincoln's sub- 
sequent career. They brought him into close 
contact and collision with able lawyers of 
every caliber, with men of force and strong 
character, men whose business it was to reason, 
persuade, cajole, and intimidate others to their 
way of thinking, and who employed every de- 
vice, from legitimate argument to brutal ter- 
rorizing, to accomplish their ends. The most 
capable layman is no match for the trained 
attorney in an argument, and a man who is fami- 
liar with the law can often silence and overawe 
an intellectual superior who is not armed with 
similar knowledge. Every lawyer of experience 
has seen business men of courage and conviction 
hesitate, vacillate, and practically disintegrate 
under legal menace and coercion ; and all readers 
of the history of this country know that more 
than one occupant of the White House, armed 
with authority, but unskilled in the ways of the 

205 



LINCOLN THE LAWYER 

law, has been cowed into practical abdication by 
tactics familiar to all frequenters of the courts. 

Lincoln's daily antagonists were such men as 
Logan, Stuart, Baker, Browning, Oglesby, 
Swett, Scott, Cullom, and Palmer— men, drawn 
from all parts of the country, who later distin- 
guished themselves as judges, congressmen, 
senators, or governors of States; and besides 
these and others of equal brilliancy, he met dif- 
ferent types and grades of the profession well 
qualified to prepare him for the great cause which 
was soon to be entrusted to his care. 

Long before he was called to Washington, 
his daily life in the courts had familiarized him 
with the roarers and bulldozers of the profession, 
with the sly and tricky gentry who work by indi- 
rection, with the untrustworthy, treacherous, and 
unscrupulous practitioner, with the broad- 
minded advocate and the narrow, bigoted parti- 
zan. 

Years before he encountered them in his cab- 
inet, he had met such men as Stanton and Seward 
and Chase; and where a man of less experience 
or other training would have quarreled with them 
or been himself torn apart in their struggles for 
supremacy, he handled them with the sure touch 

206 



LEADER OF THE BAR 

of command and made them work together for 
the nation. Stanton utterly failed to take Lin- 
coln's measure in the McCormick reaper case 
(hereafter referred to) but Lincoln took his, and 
years afterward, when the great war secretary 
attempted to bulldoze the administration, the 
patient Executive stood unmoved by his roaring 
and employed his fanatical egotism to the best 
possible advantage. Chase played for the Presi- 
dency on the Cabinet board, thinking his masked 
moves would escape the indolent attention of the 
"mast-fed lawyer," and suddenly found himself 
checked and manoeuvered into a speedy resigna- 
tion; and history has disclosed the fact that 
Seward, one of the most distinguished members 
of the New York bar, unwittingly received more 
than one lesson in law at the hands of the tactful 
Executive. 



207 



XIX 



THE JURY LAWYER 



IT is conceded by all his contemporaries that 
Lincoln was the best all-round jury lawyer 
of his day in Illinois. Undoubtedly his know- 
ledge of human nature played an important part 
in his success. He possessed another quality, 
however, which is almost, if not quite, as essential 
in jury work, and that is clearness and simplicity 
of statement. 

It will be remembered that in his Sangamon 
River argument — his first boyish attempt at 
pleading a case — he had displayed unusual ability 
in presenting his facts, and with age and ex- 
perience he developed a perfect genius for state- 
ment. His logical mind marshaled facts in such 
orderly sequence, and he interpreted them in such 
simple language, that a child could follow him 
through the most complicated cause, and his mere 
recital of the issues had the force of argument. 

Many people suppose that there is only one 
208 



THE JURY LAWYER 

way of telling the truth, and that, given honesty, 
no art is required to make a frank and fair state- 
ment of matters in dispute ; but this is a popular 
delusion. "A truth which is badly put," says Mr. 
Wells in his "Mankind in the Making," "is not a 
truth, but an infertile, hybrid lie," and every 
lawyer of experience knows that not one man in 
a thousand can make facts speak for themselves. 
Certainly the average practitioner does not 
master his material. He is controlled by it, and 
presents his cause in such a manner as to ne- 
cessitate contradiction, invite confusion, or chal- 
lenge belief. He has neither the confidence nor 
the skill to state the truth, the whole truth, and 
nothing but the truth, and his omissions and per- 
versions naturally reflect on his honesty or sin- 
cerity. 

Lincoln, on the contrary, relied on truth, knew 
how to tell it, and "with perfect sincerity often 
deceived the deceitful." "A stranger going into 
a court when he was trying a case," says Mr. 
Arnold, one of his constant associates, "would 
after a few minutes find himself instinctively on 
Lincoln's side and wishing him success." 

This lucidity of expression, persuasive clarity, 
and convincing simplicity is, of course, the dis- 

209 



LINCOLN THE LAWYER 

tinctive mark of Lincoln's literary style, in so 
far as his writing can be said to have a style ; and 
of this habit, nurtured and matured in the court- 
room, came some of the ablest state papers ever 
drawn by an American, and some of the acknow- 
ledged masterpieces of English prose. 

Lincoln not only spoke a language which 
jurors could understand, but he also took them 
into his confidence and made them feel, as one 
of his contemporaries says, that he and they were 
trying the case together. He was likewise con- 
tinually the friend of the court who thought it 
"would be only fair" to let in this, or "only right 
that that should be conceded," and who "reck- 
oned he must be wrong," when the court over- 
ruled him, but who, nevertheless, took a quiet and 
tactful exception whenever the occasion re- 
quired it. 

"Now about the time he had practised through 
three quarters of the case in this way," observes 
Leonard Swett, "his adversary would wake up 
to find himself beaten. He was as wise as a 
serpent in the trial of a case, and what he so 
blandly gave away was only what he could n't 
get and keep." 

210 



THE JURY LAWYER 

Of course these comments were merely in- 
tended to emphasize the fact that Lincoln did 
not try both sides of his cases, as some of his 
eulogists would have us believe; but unfortu- 
nately they have been distorted into an implica- 
tion that he indulged in tricks of the trade, and 
that his apparent fairness was nothing better 
than a device by which he lured the unwary to 
destruction. 

Mr. E. M. Prince, who is now living in Bloom- 
ington, Illinois, and who heard Lincoln try over 
a hundred cases of all sorts, is a competent 
authority on any question of this kind, and his 
testimony is direct and convincing. "The truth 
is," Mr. Prince remarked while talking with the 
writer, "that Mr. Lincoln had a genius for seeing 
the real point in a case at once, and aiming stead- 
ily at it from the beginning of a trial to the end. 
The issue in most cases lies in very narrow com- 
pass, and the really great lawyer disregards every- 
thing not directly tending to that issue. The me- 
diocre advocate is apt to miss the crucial point in 
his case and is easily diverted with minor matters, 
and when his eyes are opened he is usually angry 
and always surprised. Mr. Lincoln instinctively 

211 



LINCOLN THE LAWYER 

saw the kernel of every case at the outset, never 
lost sight of it, and never let it escape the jury. 
That was the only trick I ever saw him play." 

But the best possible proof that Mr. Lincoln 
was an unusually fair practitioner and generous 
opponent is the fact that he made no enemies in 
the ranks of his profession during all his active 
and varied career. Forbearance is often mistaken 
for timidity, and tact for weakness, and it not 
infrequently happened that Lincoln's profes- 
sional opponents misinterpreted his attitude to- 
ward them; but they were always speedily dis- 
illusioned. Mr. Swett remarked that "any one 
who took Lincoln for a simple-minded man [in 
the court-room] would very soon wake up on his 
back in a ditch" ; and although he seldom resorted 
to tongue-lashing, and rarely displayed anger, 
there is abundant evidence that no one ever 
attacked him with impunity. Judge Weldon 
told the writer that on one occasion a lawyer 
challenged a juror because of his personal ac- 
quaintance with Mr. Lincoln, who appeared for 
the other side. Such an objection was regarded 
as more or less a reflection upon the honor of 
an attorney in those days, and Judge Davis, who 
was presiding at the time, promptly overruled the 

212 



f— 




¥< 




Leonard Swett 



THE JURY LAWYER 

challenge; but when Lincoln rose to examine the 
jury he gravely followed his adversary's lead 
and began to ask the talesmen whether they were 
acquainted with his opponent. After two or 
three had answered in the affirmative, however, 
his Honor interfered. 

"Now, Mr. Lincoln," he observed severely, 
"you are wasting time. The mere fact that a 
juror knows your opponent does not disqualify 
him." 

"No, your Honor," responded Lincoln, dryly. 
"But I am afraid some of the gentlemen may 
not know him, which would place me at a dis- 
advantage." 

A successful jury lawyer must needs be some- 
thing of an actor at times, and during his ap- 
prentice years Lincoln displayed no little 
histrionic ability in his passionate appeals to the 
juries. Indeed, his notes in the Wright case 
show that he occasionally reverted to first prin- 
ciples even after he had reached the age of dis- 
cretion. This case was brought on behalf of the 
widow of a Revolutionary War soldier whose 
pension had been cut in two by a rapacious agent, 
who appropriated half of the sum collected for 
his alleged services. The facts aroused Lincoln's 

215 



LINCOLN THE LAWYER 

indignation, and his memorandum for summing 
up to the jury ran as follows : "No contract. Not 
professional services. Unreasonable charge. 
Money retained by defendant— not given by 
plaintiff. R evolutionary War. Describe Valley 
Forge privations. Ice. Soldiers' bleeding feet. 
Plaintiff's husband. Soldier leaving home for 
army. Skin defendant. Close." 

Mr. Herndon, who quotes this memorandum, 
testifies that the soldiers' bleeding feet and other 
pathetic properties were handled very effectively, 
and that the defendant was skinned to the entire 
satisfaction of the jury. It was only occasionally, 
however, that Lincoln indulged in fervid oratory, 
and his advice to Herndon shows his belief in 
simplicity and reserve. 

"Don't shoot too high," Herndon reports him 
as saying. "Aim lower, and the common people 
will understand you. They are the ones you want 
to reach — at least they are the ones you ought to 
reach. The educated and refined people will un- 
derstand you, anyway. If you aim too high, your 
ideas will go over the heads of the masses and 
only hit those who need no hitting." 

To interest the jurors and make them under- 
stand is, of course, the chief endeavor of every 

216 



THE JURY LAWYER 

jury advocate, and Lincoln constantly employed 
his great gifts as a story-teller to illustrate, sim- 
plify, and reinforce his arguments, which is an- 
other proof that he did not waste this valuable 
ammunition on tavern loiterers. Stories are more 
interesting than logic and far more effective with 
the average audience, and Lincoln's juries 
usually heard something from him in the way 
of an apt comparison or illustration which im- 
pressed his point upon their minds. 

On one occasion when he was defending a case 
of assault and battery it was proved that the 
plaintiff had been the aggressor, but the op- 
posing counsel argued that the defendant might 
have protected himself without inflicting injuries 
on his assailant. 

"That reminds me of the man who was at- 
tacked by a farmer's dog, which he killed with 
a pitchfork," commented Lincoln. 

6 'What made you kill my dog V demanded 
the farmer. 

: 'What made him try to bite me ?' retorted the 
offender. 

"But why did n't you go at him with the 
other end of your pitchfork?' persisted the 
farmer. 

217 



LINCOLN THE LAWYER 

"Well, why did n't he come at me with his 
other end?' was the retort." 

Lincoln not only made effective use of stories 
with the jury, but frequently employed them in 
arguing to the court, and he once completely 
refuted a contention that custom makes law with 
an anecdote drawn from his own experience. 

"Old Squire Bagley from Menard," he began, 
"once came into my office and said, 'Lincoln, I 
want your advice as a lawyer. Has a man what 's 
been elected a justice of the peace a right to 
issue a marriage license?' I told him he had not. 
'Lincoln, I thought you was a lawyer,' he re- 
torted. 'Bob Thomas and me had a bet on this 
thing, and we agreed to let you decide it; but if 
thet is your opinion, I don't want it, for I know 
a thunderin' sight better. I 've been Squire now 
eight years, and I 've done it all the time!' ' 

Even the attorney whose argument for custom 
was thus answered must have smiled at this good- 
natured disposal of his claims, and Lincoln's 
humor generally freed his criticisms of all of- 
fense. "He can compress the most words into 
the smallest ideas of any man I ever met," was, 
perhaps, the severest retort he ever uttered; but 

218 



THE JURY LAWYER 

history has considerately sheltered the identity 
of the victim. 

Wit and ridicule were Lincoln's weapons of 
offense and defense, and he probably laughed 
more jury cases out of court than any other man 
who practised at the bar. 

"I once heard Mr. Lincoln defend a man in 
Bloomington against a charge of passing coun- 
terfeit money," Vice-President Stevenson told the 
writer. "There was a pretty clear case against 
the accused, but when the chief witness for the 
people took the stand, he stated that his name 
was J. Parker Green, and Lincoln reverted to 
this the moment he rose to cross-examine. Why 
J. Parker Green? . . . What did the J. 
stand for? . . . John? . . . Well, why 
did n't the witness call himself John P. Green? 
. . . That was his name, was nt it? . . . 
Well, what was the reason he did not wish to be 
known by his right name? . . . Did J. 
Parker Green have anything to conceal; and if 
not, why did J. Parker Green part his name in 
that way? And so on. Of course the whole 
examination was farcical," Mr. Stevenson con- 
tinued, "but there was something irresistibly 

13 219 



LINCOLN THE LAWYER 

funny in the varying tones and inflections of Mr. 
Lincoln's voice as he rang the changes upon the 
man's name; and at the recess the very boys in 
the street took it up as a slogan and shouted 'J. 
Parker Green!' all over the town. Moreover, 
there was something in Lincoln's way of in- 
toning his questions which made me suspicious of 
the witness, and to this day I have never been 
able to rid my mind of the absurd impression that 
there was something not quite right about J. 
Parker Green. It was all nonsense, of course; 
but the jury must have been affected as I was, 
for Green was discredited and the defendant 
went free." 



220 



XX 



THE CROSS-EXAMINER 



THERE were no official shorthand writers 
in the courts while Lincoln practised, 1 and 
the lawyers took their own notes of the testimonj^ 
during the trial; and these, together with such 
memoranda as the judge entered on his minutes, 
formed the data for the record. Lincoln him- 
self, however, rarely took any notes, claiming 
that it distracted his attention ; and as his memory 
was excellent and his reputation for honesty well 
established, he experienced no difficulty in sup- 
porting his version of what happened at the trial 
when the records were necessary for the appellate 
courts. 2 

ir The Hon. Robert R. Hitt, the distinguished representative from 
Illinois in Congress, advised the writer that " in 1858, at the time 
of the Lincoln-Douglas debates, I knew of no other shorthand 
writer residing in Illinois. There were no court shorthand writers 
or official stenographers' in the State, and no provision of law for 
anything of the kind." 

2 In making up an appellate record in those days, each lawyer 
stated the substance of what he thought the testimony had been, 
and the judge supplemented or corrected the two versions and 
certified the result to the higher court. 

221 



LINCOLN THE LAWYER 

None of the bar ever attempted, however, to 
secure a verbatim report of the questions and an- 
swers, and therefore it is impossible to obtain any 
official illustrations of Lincoln's methods of 
handling witnesses. There is abundant proof, 
nevertheless, of his skill in this particular, and it 
is conceded by all his contemporaries that as a 
cross-examiner he had no equal at the bar. 

"In the trial of a case he moved cautiously," 
said Judge Weldon, "and nev*er examined or 
cross-examined witnesses to the detriment of his 
own side. If the witness told the truth, he was 
safe from his attacks ; but woe betide the unlucky 
or dishonest individual who suppressed the truth 
or colored it." 

Another of his associates testifies that he 
would not tolerate the evasions of his own wit- 
nesses when they were being questioned by his 
opponents, and more than once he openly re- 
proved his own clients for dodging and sulking 
in the witness-chair. 

"He was a great cross-examiner," Mr. James 
Ewing remarked to the writer, "in that he never 
asked an unnecessary question. He knew when 
and where to stop with a witness, and when a 
man has learned that he is entitled to take rank 
as an expert questioner." 

222 



EC 




ffi 

1 1 

O w 

^ r 3 * 

III 8f 



if; -C 

H 0> 





THE CROSS-EXAMINER 

"I shall never forget my experience with him," 
observed Mr. James Hoblit of Logan County, 
Illinois, one of the few men now living who ever 
faced him in the witness-chair. "I was sub- 
poenaed in a case brought by one Paullin against 
my uncle, and I knew too much about the matter 
in dispute for my uncle's good. The case was 
not of vital importance, but it seemed very serious 
to me, for I was a mere boy at the time. Mr. 
Paullin had owned a bull which was continually 
raiding his neighbor's corn, and one day my 
uncle ordered his boys to drive the animal out of 
his fields, and not to use it too gently, either. 
Well, the boys obeyed the orders only too liter- 
ally, for one of them harpooned the bull with a 
pitchfork, injuring it permanently, and I saw 
enough of the occurrence to make me a danger- 
ous witness. 

"The result was that Paullin sued my uncle, 
the boys were indicted for malicious mischief, 
Mr. Lincoln was retained by the plaintiff, who 
was determined to make an example of some- 
body, and I was subpoenaed as a witness. My 
testimony was, of course, of the highest possible 
importance, because the plaintiff could n't make 
my cousins testify, and I had every reason to want 

225 



LINCOLN THE LAWYER 

to forget what I had seen, and though pretty 
frightened, I determined, when I took the stand, 
to say as little as possible. Well, as soon as I told 
Mr. Lincoln my full name he became very much 
interested, asking me if I was n't some relative 
of his old friend John Hoblit who kept the half- 
way house between Springfield and Blooming- 
ton ; and when I answered that he was my grand- 
father, Mr. Lincoln grew very friendly, plying 
me with all sorts of questions about family mat- 
ters, which put me completely at my ease, and 
before I knew what was happening, I had for- 
gotten to be hostile and he had the whole story. 
After the trial he met me outside the court-room 
and stopped to tell me that he knew I had n't 
wanted to say anything against my people, but 
that though he sympathized with me, I had acted 
rightly and no one could criticize me for what I 
had done. The whole matter was afterward ad- 
justed, but I never forgot his friendly and en- 
couraging words at a time when I needed sym- 
pathy and consolation." 

Cross-examination makes greater demands 
upon a lawyer than any other phase of trial work, 
and it has been rightly termed an art. To suc- 
ceed in it the practitioner must be versed in the 

226 



THE CROSS-EXAMINER 

rules of evidence ; he must be familiar with all the 
facts in his case, and keep them continually in 
his mind ; he must think logically, be far-sighted, 
tactful, and a keen judge of human nature. All 
these qualities Lincoln possessed to an unusual 
degree, and, in addition, he exerted a remarkable 
personal influence upon every one with whom he 
came into contact. Men who were openly op- 
posed to him became fascinated when they met 
him, and few ever retained their hostility. This 
result was effected without any seeming effort 
on his part, and Lincoln was singularly free from 
all the arts and graces, natural or cultivated, 
which are usually associated with personal charm. 
He was direct, simple, and unaffectedly frank, 
and the conclusion is irresistible that he was en- 
dowed with psychic qualities of extraordinary 
power. Nothing except this can properly explain 
his wonderful control of witnesses and juries, 
and every experienced lawyer knows that strong 
individuality, commanding presence, and per- 
sonal magnetism are essential factors in the 
equipment of all great cross-examiners. More 
than one man has described the effect of Lin- 
coln's eyes by saying that they appeared to look 
directly through whatever he concentrated his 

227 



LINCOLN THE LAWYER 

gaze upon, and it is well known that during his 
frequent fits of abstraction he became absolutely 
oblivious to the bustle and confusion of the 
court-room and saw nothing of the scene before 
him. 

But although there was something mysterious 
in Lincoln's personality which played an impor- 
tant part in his success as a cross-examiner, his 
mastery of the art was acquired in the only way 
it can be acquired, and that is by constant, daily 
practice in the courts. He was a natural logician, 
and by slow degrees he cultivated this gift until 
he could detect faulty reasoning, no matter how 
skilfully it was disguised. In almost every in- 
stance he saw the logical conclusion of an answer 
long before it dawned upon the witness, and was 
thus able to lead him without appearing to do so. 
It will be seen in another chapter how effectively 
he once employed this art. 

Mr. Arnold, comparing Douglas and Lincoln, 
says: "Both were strong jury lawyers. Lincoln 
was, on the whole, the strongest we ever had in 
Illinois. Both were distinguished for their abil- 
ity in seizing and bringing out distinctly and 
clearly the real points in a case. Both were happy 
in the examination of witnesses, but I think 

228 



THE CROSS-EXAMINER 

Lincoln was the stronger of the two in cross- 
examination." 

This is valuable testimony, coming as it does 
from a professional associate of many years' 
standing; and a careful reading of the great 
debates demonstrates that Lincoln was not only 
a more effective questioner, but in every other 
way a better-equipped lawyer than Douglas. In- 
deed, it was Douglas's errors of law quite as 
much as his errors of statesmanship which cost 
him the Presidency. 

Lincoln's skill as a cross-examiner effected 
some of his most dramatic triumphs, and his 
cause celebre is undoubtedly the trial of William 
Armstrong for the killing of James Metzker, 
where his talents in this particular saved the day 
for his client. 

The story of this now famous case has often 
been recounted, and its dramatic features have 
been skilfully utilized in at least one volume of 
fiction, 1 but the distortions wrought by many 
versions justify a complete retelling of the facts 
gathered directly from the records themselves and 
from an interview with Judge Lyman Lacey, 
who was associated with Mr. Walker, the def end- 

^ee Edward Eggleston's "The Graysons." 

229 



LINCOLN THE LAWYER 

ant's attorney, and is still living in Mason 
County. 

In the days when Lincoln was working as a 
clerk in Offutt's New Salem store he had won the 
respect and admiration of the rough element in 
the community by flooring one Jack Armstrong, 
the leader of the Clary's Grove boys, in a 
wrestling-match, and the fallen champion in- 
stantly became his stanch friend and ally. Arm- 
strong afterward married, and Lincoln, who 
knew his wife, could not resist her appeal when 
she sought him out during the great debate with 
Douglas and begged him to come to the rescue 
of her son, who was charged with murder and 
was on the point of being tried. Mr. William 
Walker, a skilful lawyer, had been retained for 
the defense, but as the case against his client was 
exceedingly serious, he was only too willing to 
have expert assistance, and Lincoln therefore 
laid aside his pressing political engagements and 
plunged at once into the trial of the case. 

The defendant, William Armstrong, popu- 
larly known as "Duff," was a youth of bad 
habits, and on August 29, 1857, while under the 
influence of liquor, he had quarreled with another 
young man by the name of Metzker, and had 

230 



THE CROSS-EXAMINER 

beaten him severely. This occurred during the 
afternoon; but when the quarrel was renewed 
late at night, one Norris joined in the fracas, and, 
between him and Armstrong, Metzker received 
injuries which resulted in his death. Popular in- 
dignation against the accused was so violent in 
Mason County that Armstrong's lawyer moved 
for a change of venue, claiming that his client 
could not receive a fair trial in the local court; 
and the judge was apparently of the same 
opinion, for he removed the case to Beardstown, 
the county-seat of Cass County. Meanwhile 
Norris, the other defendant, was brought to trial 
before the home tribunal, where it was clearly 
shown that he had assaulted the deceased with a 
cart-rung; but it was not demonstrated that his 
blows had caused death, and the body showed 
other wounds not necessarily made by such a 
weapon. Under these circumstances the jury 
brought in a verdict of manslaughter, and the 
defendant was sentenced to eight years' im- 
prisonment. 

This was the situation when Hannah Arm- 
strong appealed to Lincoln; but despite the 
gloomy outlook, he took a hopeful view and re- 
assured the anxious mother. Not only were the 

231 



LINCOLN THE LAWYER 

facts against his client, but the Illinois law of 
that day did not permit a defendant to testify in 
his own behalf, so that Armstrong was precluded 
from giving his own version of the story and 
denying the testimony of the accusing witnesses. 
The assistant prosecuting attorney was Mr. J. 
Henry Shaw, and Caleb J. Dillworth, another 
able lawyer, was associated with him, but Lin- 
coln scored against them at the start by securing 
a jury of young men whose average age was 
not over twenty-five. Most of the witnesses 
were also young, and these Lincoln handled so 
skilfully on cross-examination that their testi- 
mony did not bear heavily against the accused. 
Almost all of them were from the neighborhood 
of New Salem, and whenever the examiner heard 
a familiar name he quickly took advantage of the 
opening to let the witness know that he was 
familiar with his home, knew his family, and 
wished to be his friend. These tactics succeeded 
admirably, and no very damaging testimony was 
elicited until a man by the name of Allen took 
the stand. This witness, however, swore that he 
actually saw the defendant strike the fatal blow 
with a slungshot or some such weapon; and Lin- 
coln, pressing him closely, forced him to locate 

232 



THE CROSS-EXAMINER 

the hour of the assault as about eleven at night, 
and then demanded that he inform the jury how 
he had managed to see so clearly at that time of 
night. "By the moonlight," answered the wit- 
ness, promptly. "Well, was there light enough 
to see everything that happened?" persisted the 
examiner. The witness responded "that the 
moon was about in the same place that the sun 
would be at ten o'clock in the morning and was 
almost full, 1 and the moment the words were out 
of his mouth the cross-examiner confronted him 
with a calendar showing that the moon, which at 
its best was only slightly past its first quarter on 
August 29, had afforded practically no light at 
eleven o'clock and that it had absolutely set at 
seven minutes after midnight. This was the 
turning-point in the case, and from that moment 
Lincoln carried everything before him, securing 
an acquittal of the defendant after a powerful 
address to the jury. 

There is a singular myth connected with this 
case, to the effect that Mr. Lincoln played a 
trick on the jurors by substituting an old 
calendar for the one for the year of the 

3 This is the witness's answer as reported by Mr. Henry Shaw, the 
District Attorney. 

233 



LINCOLN THE LAWYER 

murder, and virtually manufacturing the testi- 
mony which carried the day. How such a rumor 
started no one can say, but it goes far to prove 
the impossibility of ever successfully refuting a 
lie; for though repeatedly exposed, it still per- 
sists on the Illinois circuit to-day. The facts are, 
of course, that the calendar for August 29, 1857, 
shows the position of the moon precisely as Lin- 
coln claimed it, 1 and every one who understands 
anything of trial work knows that an important 
exhibit of that sort would be examined by the 
judge and the opposing lawyers as well as by the 
jury, besides being marked for identification if 
submitted in evidence. Therefore Lincoln would 
have been a fool, as well as a disreputable 
trickster, if he had resorted to the asinine practice 
outlined in this silly tale, which practically dis- 
proves itself. 

x In September, 1905, the United States Naval Observatory, an- 
swering the writer's inquiry, reported that on August 29-30, 1857, 
the moon set at 7 minutes 5 seconds after midnight, and at cul- 
mination, during the preceding twenty-four hours, "was 2 days 
9 hours and 46.1 minutes past the first quarter." 



234 



XXI 



LEGAL ETHICS 



DESPITE his success in the Armstrong and 
other capital cases, Lincoln was not well 
qualified for work of this character, and he 
avoided the practice of criminal law as far as 
possible. 

There has long been a tradition in the old 
Eighth Illinois Circuit that he once defended a 
murderer who was convicted, sentenced, and 
hanged; but as capital cases resulting in con- 
viction are almost invariably appealed to the 
highest tribunal, and as the Supreme Court re- 
ports do not record any murder case with which 
he was associated, the rumor has been supposed 
to be without foundation. There is, however, a 
paper in Lincoln's handwriting on file in Han- 
cock County showing that he was associated with 
the defense of one William Fraim, who was tried 
and convicted April 25th, 1839, for the murder of 
a man named William Neathammer and subse- 
quently hanged May 18th of the same year, and 

235 



LINCOLN THE LAWYER 

this is doubtless the hitherto unlocated cause of 
circuit memories. 1 

Although he did not seek criminal practice, 
Lincoln did nevertheless occasionally appear in 
homicide cases, 2 and his defense of "Peachy" 
Harrison, grandson of his old political rival 
Peter Cartwright, the circuit-riding preacher, 
though less dramatic than the Armstrong case, 
is perhaps one of the best illustrations of his re- 
markable power with a jury. 

Young Harrison and a youth by the name of 
Greek Crafton quarreled over a question of 
politics, and a fight ensued in which Crafton re- 
ceived a knife-thrust resulting in his death. The 
case attracted considerable attention, and both 
the prosecution and the defense were ably repre- 
sented, Maj. Gen. John M. Palmer, afterward 
Governor of Illinois, and John A. McClernand, 

1 The writer is indebted to the courtesy of Mr. Thos. F. Dunn, 
Ex-Circuit Court Clerk of Hancock County, for these facts and 
the opportunity of examining the original papers connected there- 
with. 

2 Lincoln acted as prosecutor in at least one murder case. He 
was appointed by the court to conduct the people's case against 
one Wyant, who was represented by Leonard Swett, and a battle 
royal followed between the two lawyers which is vividly remem- 
bered by many of the residents of Bloomington, Illinois, with whom 
the writer talked. After a trial lasting many days the jurors 
brought in an irregular verdict, which virtually committed the 
defendant to the lunatic asylum, but finally they acquitted him 
under what was equivalent to a court direction. 

236 



LEGAL ETHICS 

who also became a distinguished general in 
the Civil War, appearing for the people, and 
Lincoln, Herndon, Judge Logan, and Shelby 
M. Cullom, the present United States senator 
and ex-Governor of Illinois, being retained 
for the defendant. There was some conflict 
of testimony over the facts leading up to the 
killing, but the defense did not make much 
impression until Lincoln put the defendant's 
grandfather, Peter Cartwright, on the stand, 
and with touching solicitude drew from the 
old man the story of his last interview with 
the deceased, in which he expressed his reconcilia- 
tion with his assailant, whom he prayed would 
not be held responsible for his death. Then, with 
virtually no facts to support his plea, Lincoln 
began his address to the jury, exhorting them to 
heed the dying victim's words and abstain from 
visiting further sorrow and affliction upon the 
venerable preacher who had delivered them a 
message almost from the other world; and so 
powerfully did he move his auditors that the 
efforts of the prosecution were unavailing and a 
verdict of acquittal followed. 

Lincoln was not considered a formidable op- 
ponent in the criminal courts, however, unless he 

14 237 



LINCOLN THE LAWYER 

thoroughly believed in the justice of his cause. 
Mr. Whitney reports that on one occasion when 
he was defending a man charged with man- 
slaughter, the testimony demonstrated that his 
client ought to have been indicted for murder in 
the first degree, whereupon Lincoln instantly lost 
all interest in the case. He did not actually 
abandon the defense, but he could not cooperate 
effectively with his associates, who were endeav- 
oring to acquit the defendant, and one of them 
states that when Lincoln addressed the jurors he 
disparaged the effort which had been made to 
work upon their feelings and confined himself to 
a strictly professional argument along conven- 
tional lines, with the result that the defendant 
was found guilty and sentenced to three years' 
imprisonment. This fairly disgusted Mr. Whit- 
ney, who was anxious to have the murderer ac- 
quitted, and he does not hesitate to characterize 
Mr. Lincoln's conduct as "atrocious." 

But Lincoln was guilty of many other "atroci- 
ties" of the same character. It is well known 
that he virtually abandoned his client in another 
capital case when he discovered that he was de- 
fending a guilty man. "You speak to the jury," 
he said to Leonard Swett, his associate counsel; 

238 



LEGAL ETHICS 

"if I say a word, they will see from my face that 
the man is guilty and convict him." On another 
occasion, when it developed that his client had in- 
dulged in fraudulent practices, he walked out of 
the court-room and refused to continue the case. 
The judge sent a messenger, directing him to 
return, hut he positively declined. "Tell the 
judge that my hands are dirty and I 've gone 
away to wash them," was his disgusted response. 

This conduct in the court-room was in entire 
keeping with his office practice, where he declined 
time and again to undertake doubtful causes, dis- 
couraged litigation, and discountenanced sharp 
practices. 

"Yes" Mr. Herndon reports him as advising a 
client, "we can doubtless gain your case for yon; 
we can set a whole neighborhood at loggerheads; 
we can distress a widowed mother and her six 
fatherless children, and thereby get for you sice 
hundred, dollars to which you seem to have a legal 
claim, but which rightfully belongs, it appears to 
me, as much to the woman and her children as it 
does to you. You must remember, however, that 
some things legally right are not morally right. 
We shall not take your case, but we will give you 
a little advice for which we will charge you 

239 



LINCOLN THE LAWYER 

nothing*, You seem to be a sprightly, energetic 
nan. We would advise you to try your hand at 
making six hundred dollars in some other way" 

At another time he was very anxious to secure 
delay in a certain case, and Herndon drew up a 
dilatory plea which would effectually postpone 
the trial for at least one term of court. It was 
the sort of thing which is condoned in almost 
every law office, but Lincoln repudiated it the 
moment it came to his notice. "Is this founded 
on fact?" he demanded of his partner, and Hern- 
don was obliged to admit that it was not, urging, 
however, that it would save the interests of their 
client, which would otherwise be imperiled. But 
Lincoln was not to be persuaded. "You know it 
is a sham," he answered, "and a sham is very 
often but another name for a lie. Don't let it go 
on record. The cursed thing may come staring 
us in the face long after this suit has been for- 
gotten." Herndon complied with this instruc- 
tion and the paper was withdrawn. 

These and similar actions have been character- 
ized by one highly respectable authority as "ad- 
mittedly detracting from Lincoln's character as 
a lawyer," but no member of the profession who 
has the best interests of his calling at heart will 

240 



LEGAL ETHICS 

accept such a conclusion. On the contrary, it is 
because he had the courage and character to up- 
hold the highest standards of the law in daily 
practice that Lincoln is entitled to a place in the 
foremost rank of the profession. He lived its 
ideals and showed them to be practical, and his 
example gives inspiration and encouragement to 
thousands of practitioners who believe that those 
things which detract from the character of the 
man detract from the character of the lawyer. 

Some of Lincoln's biographers apparently dis- 
regard his legal history because he never suc- 
ceeded in making much more than a bare living 
from his practice, and they seemingly conclude 
from this fact that he is not entitled to high rank 
in the profession. This view, of course, misses 
one of the vital points in Lincoln's character 
both as a man and a lawyer, for he placed prin- 
ciple beyond price and illustrated the maxim that 
it is "better to make a life than a living." 

Before he had won his place at the bar he had 
stated his theories on the subject. "The matter 
of fees is important, far beyond the mere question 
of bread and butter involved, 3 ' he wrote in his 
notes for a law lecture. "Properly attended to, 
fuller justice is done to both lawyer and client. 

241 



LINCOLN THE LAWYER 

An exorbitant fee should never be charged. As 
a general rule, never take your whole fee in ad- 
vance, nor any more than a small retainer. When 
fully paid beforehand, you are more than a com- 
mon mortal if you can feel the same interest in 
the case as if something was still in prospect for 
you as well as for your client" 

This was largely the advice of a theorist; but 
Lincoln carried it into practice so completely that 
the profession was scandalized. Indeed, one of 
his associates relates an incident where Lincoln's 
scruples proved exceedingly embarrassing. He 
had been retained to oppose the removal of a con- 
servator, or legal guardian, of a woman whose 
mind was deranged. The estate involved about 
ten thousand dollars, and the man who was at- 
tacking the conservator evidently desired to have 
him removed so that he could marry the lunatic 
and obtain possession of her funds. Lincoln 
made short work of this nefarious business; but 
when he learned that the attorney who had re- 
tained him had charged two hundred and fifty 
dollars for their joint services, he refused to take 
any share of the money until the fee had been 
reduced to what he deemed a reasonable amount. 

When Judge Davis heard of this, he was 
242 



LEGAL ETHICS 

highly indignant. "Lincoln, you are impoverish- 
ing the bar by your picayune charges," he is said 
to have exclaimed; and the lawyers thereupon 
tried the offender by what was called on the cir- 
cuit an "orgmathorical" (mock) court, but he 
stood trial, and being found guilty, paid the fine 
with the utmost good-nature. 

Judge Weldon describes another episode 
which perfectly illustrates Lincoln's attitude to- 
ward more than one aspect of the law. A Por- 
tuguese by the name of Dungee married a girl 
named Spencer, and later there was a family 
quarrel between the bridegroom and his relatives- 
in-law which became so bitter that the girl's 
brother referred to her husband as "a nigger," 
and followed this up by describing him as "a 
nigger married to a white woman." Dungee 
thereupon retained Lincoln and sued his brother- 
in-law for slander. The defendant was repre- 
sented by Mr. Moore and Judge Weldon, and 
when the case was moved for trial in Clinton 
County, Judge Weldon demurred to Lincoln's 
complaint on technical grounds, and the de- 
murrer was sustained. Lincoln was not too 
pleased that his papers were rejected as faulty, 
but he redrew them, merely remarking to his op- 

243 



LINCOLN THE LAWYER 

ponents, with significant determination, "Now I 
will beat you!" When the case reappeared for a 
hearing, he was as good as his word, attacking 
the defendant with great severity for his scanda- 
lous utterances. 

After a two days' battle, the jury decided for 
the plaintiff, and the verdict amounted to what 
was a large sum in those days. But although he 
had won the fight, Lincoln was not satisfied with 
the result. "As a peacemaker the lawyer has a 
superior opportunity of being a good man 3 / he 
had written as a theorist, and in practice he was 
still able to see that money damages do not heal 
family feuds. Thereupon he persuaded his 
client not to insist upon the payment of the 
verdict, and the matter was finally adjusted by 
the defendant agreeing to pay the costs and 
lawyers' fees. Lincoln stipulated that his ad- 
versaries should fix the amount of his fee; but 
when they declined to do so, he remarked: "Well 
gentlemen, dont you think I have honestly 
earned twenty -five dollars?" 

Certainly there are good grounds for criticizing 
Lincoln as a business man, and no one will dis- 
pute the charge that he was utterly lacking in all 
the essentials of commercial genius. 

244 



XXII 



LEGAL REPUTATION 



ONE of Lincoln's latest biographers, in ex- 
pressing admiration for his statesmanship, 
enumerates his disadvantages, and asserts that 
before he went to Washington "he had had no 
experience in diplomacy and statesmanship; as 
an attorney he had dealt only with local and 
State statutes ; he had never argued a case in the 
Supreme Court and he had never studied inter- 
national law." 

There is very little inspiration in the career of 
a man whose achievements are inexplicable or 
whose natural endowments are the despair of 
ordinary mortals, and eulogies which tend to rob 
Lincoln of human interest and incentive are 
usually based on misinformation. 

Certainly the wondering tribute above quoted 
displays no convincing acquaintance with the 
facts, for it entirely misrepresents the extent and 
value of Lincoln's legal education. His three 
and twenty years' active practice in the courts 

245 



LINCOLN THE LAWYER 

supplied him with the best of diplomatic training. 
It did not, of course, familiarize him with the 
etiquette and forms of international relations, 
but it gave him a thorough knowledge of men 
and taught him "to see behind the smiling mask 
of craft." Much the same experience qualified 
an Ex- Secretary of State to cope successfully 
with the most skilful diplomats of Europe during 
the Spanish War, and to confer high distinction 
upon our modern statesmanship. 

Again, Lincoln's knowledge of law was 
not confined to local or State statutes. He was 
acquainted with the great principles of the Eng- 
lish common law, and if he was not familiar with 
"the waves and tides of legal authority," he was 
still well grounded in all the fundamentals of his 
profession, and it would be absurd to deny him 
recognition as a lawyer merely because he "never 
had had a case in the United States Supreme 
Court." But even in this small particular the 
biographer is at fault, for Lincoln did have a 
case before that tribunal, known as Lewis V. 
Lewis 1 (reported in 7 Howard, 776), and the 

*It is an interesting fact that Judge Taney, of Dred Scott 
fame, delivered the prevailing opinion of the court in this case. 

Another of Lincoln's cases in the United States Supreme Court is 
Forsythe v. Reynolds, 14 Law. Ed. 729. See also 7 How. 185. 

246 



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» eft ais^cCL**. pu^^ /fcL'-f 

,. wJLi,'^ v t M ij /m 




t 

From the collection of the Hon. Robert T. Lincoln 

Facsimile of a part of Lincoln's memorandum brief in the case of 
Lewis v. Lewis in the United States Supreme Court. 

Mr. Lincoln likewise appeared in United States v. Chicago, 7 How. 
185. (Information obtained from Clerk of U. S. Supreme Court and 
Charles W. Moores, Esq., of the Indiana Bar.) 



247 



LINCOLN THE LAWYER 

original of his brief in that action is in existence 
to-day 

It would not be difficult to quote passages from 
other biographers in proof of the fact that Lin- 
coln's work as a lawyer has never been scrutinized 
with any care, and doubtless the trivial anecdotes 
concerning his life on the circuit which have done 
duty for the last forty-five years have contributed 
to the general misconception of his professional 
standing. The once funny story about "the 
pig-and-crooked-fence" case, "the old-sledge-and- 
seven-up" trial, and similar time-worn yarns, 
have been accepted as characterizing his legal 
experience; and under such circumstances it is 
not at all surprising that serious historians have 
regarded his legal training as a negligible quan- 
tity. Fortunately, however, the records are ac- 
cessible, and they speak very largely for them- 
selves. 

In his twenty-three years at the bar, Lincoln 
had no less than one hundred and seventy-two 
cases before the highest court of Illinois, a record 
unsurpassed by his contemporaries ; he appeared 
before the United States circuit and district 
courts with great frequency; he was the most in- 

248 



LEGAL REPUTATION 



defatigable attendant on the Eighth Circuit and 
tried more cases than any other member of that 
bar; he was attorney for the Illinois Central 
Railroad, the greatest corporation in the State, 
and one which doubtless had its choice of legal 



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Lincoln's pass as counsel for the Illinois Central Railroad 

talent; he was also counsel for the Rock Island 
Railroad, and other corporations and individuals 1 
with important legal interests at stake; he was 
sought as legal arbitrator in the great corporation 

'Mr. W. Thomas, a lawyer who retained Mr. Lincoln as 
counsel in an important litigation, wrote him in December, 1859, 
as follows: "Judge Caton has the Record and he told me that he 
had not decided what to do and that he was in doubt, etc. I want 
you and Logan to assist me in presenting this case in such form 
as to undoubt the Judge. I ought to and must gain this case. If 
you can be the means of success you will almost bring me under 
obligation to support the Black Republicans." 

(From original letter in possession of General Orendorff.) 

249 



LINCOLN THE LAWYER 

litigations of Illinois 1 and he tried some of the 
most notable cases recorded in the courts of that 
State. 

Perhaps the most important cause he ever 
handled was that known as The Illinois Central 
Railroad v. McLean County, reported in 17 Il- 
linois, 29 1. 2 This was an action brought against 
McLean County to restrain the collection of cer- 
tain taxes alleged to be due from the railroad, 
growing out of the fact that the Illinois legis- 
lature had granted the corporation exemption 
from all State taxes on condition that it pay 
seven per cent, of its gross earnings into the State 
treasury. The county authorities, however, 
claimed that this provision did not preclude them 
from taxing so much of the railroad's property 

a The following telegram, original of which is in General Oren- 
dorff's collection, speaks for itself: 

"Chicago, Oct. 14, 1853. 
"To Abraham Likcolk, 
"Springfield, 111. 
"Can you come here immediately and act as arbitrator in the 
crossing case between the Illinois Central and Northern Indiana 
R. R. Companies if you should be appointed? Answer and say 
yes if possible. 

(Signed) "J. F. Joy." 

2 Lincoln was opposed in this noted case by both his old law 
partners, Judge Logan and John T. Stuart. The decision has 
been cited at least twenty-three times by judges of other courts. 

250 



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r ^Lc*-»^~^. /PSIZ Zs&fr/ ^4r-Z7 /^- /t^o^ZlZr CL<^tZZZj& sdgZZ&i^ 

From Geiieral Alfred OrendorfFs collection 

Facsimile of the first page of Lincoln's opinion on a question 

involving the construction of the charter of the Illinois 

Central Railroad 

251 



LINCOLN THE LAWYER 

as lay within their respective jurisdictions, and a 
great legal battle ensued. The issue was a vital 
one for the corporation, for the claims of the 
county threatened it with bankruptcy, and rail- 
roading in Illinois was then in its experimental 
stage. Lincoln conducted the defense with rare 
skill but lost in the first court. He instantly ap- 
pealed the case to the Supreme Court, however, 
and there it was twice argued before a final de- 
cision was recorded in favor of the road at the 
end of two years' litigation. 

This celebrated case was provocative of an- 
other, for the Illinois Central declined to pay 
Lincoln's bill for services rendered in the tax 
matter without suit, and he brought an action in 
the Supreme Court for $5,000 and costs. On the 
trial all the leaders of the Illinois bar — O. H. 
Browning, N. B. Judd, Isaac Arnold, Grant 
Goodrich, Archibald Williams, Judge Norman 
Purple, Judge Logan and Robert Blackwell — 
joined in a written statement which was presented 
to the court, certifying that Lincoln's bill was 
reasonable and the jury promptly brought in a 
verdict for the full amount. 

It is interesting to note Lincoln's attitude and 
conduct in this litigation. When the case was 

252 



LEGAL REPUTATION 

first called for trial, no one appeared on behalf of 
the railroad, and judgment was awarded to the 
plaintiff by default : nevertheless Lincoln agreed 
that the case might be reopened, thus allowing 
the defendant to have its day in court without 
penalty; and when the verdict was rendered, 
he agreed to have it set aside because he had 
forgotten to introduce proof of two hundred 
dollars which had been given him as a retainer, 
and the final verdict was recorded at forty- 
eight hundred dollars and costs. Incidentally it 
may be mentioned that the services for which Lin- 
coln was obliged to sue would to-day cost the cor- 
poration not -five, but fifty, thousand dollars. 

It is only fair to state that within the last few 
years the Illinois Central Railroad has issued an 
elaborate pamphlet giving its side of this case, 
and undertaking to show that Lincoln's bill was 
not certified out of deference to the board of 
directors, who might have censured the local offi- 
cials for voluntarily paying so large a charge 
against their company, and that the trial was 
merely a formality. Lincoln's unusually careful 
brief on the law and the facts, however, does not 
bear out the contention that the litigation was 
friendly, and there are other facts which tend to 
15 253 



&* *" 



laj ix&%:. 



<Cttsui* &^~+<S A^f^C C^Jty ,^-tf-c*/ £& CXjC*£<*-<S 0uy^J, £*** 











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General Alfred OrendorrTs collection 



Facsimile of part of Lincoln's trial brief in his case against the 

Illinois Central Railroad, showing his careful 

preparation of the issues 

indicate that the corporation's treatment of its 
distinguished counsel was not as handsome as the 
publication in which it now explains its action. 1 

J For more extended reference to this matter see Appendix, 

254 



LEGAL REPUTATION 

While Lincoln was traveling the circuit with 
Judge Davis, he was retained in the now famous 
case of McCormick v. Manny, 1 an action brought 
by the plaintiff, who owned valuable patents for 
reaping-machines, to enjoin the defendant from 
manufacturing similar contrivances and to re- 
cover four hundred thousand dollars damages 
for infringements. Lincoln was engaged by a 
Mr. Watson, who was in charge of the defense, 
and the original plan was to have him conduct 
the forensic part of the trial, Mr. E. H. Dick- 
erson, a well-known patent solicitor, had been re- 
tained by McCormick to make the technical 
argument, and Reverdy Johnson, the noted 
Baltimore advocate, and one of the most distin- 
guished lawyers in the country, was to oppose 
Lincoln, who was naturally very anxious to 
measure himself against a man of such wide 
reputation. But Mr. Watson also saw fit to re- 
tain Mr. Harding, a patent solicitor, and Edwin 
M. Stanton, who then resided at Pittsburg, but 
who was well and favorably known in Cincinnati, 
where the trial was to take place, and whose per- 
sonal influence with the court was relied upon to 
offset the great reputation of Reverdy Johnson. 

l Reported in McLean's U. S. Reports, vol. vi, p. 539. 

255 







/£: §1^. J. (ft. &y 

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256 






From General Alfred Orendorff' s collection 

A memorandum brief in Lincoln's handwriting opposing an attempt 
to break a will and showing a wide range of authorities 

When the lawyers met in Cincinnati, it was de- 
cided in consultation that only two counsel should 
be heard on each side, and that the defense should 
be represented by Harding and Stanton. This 
was undoubtedly a bitter disappointment to Lin- 
coln, who had carefully prepared himself to 
make the argument, and who had never had an 
equal opportunity of meeting a lawyer of 
national reputation. He accej)ted the decision 
as gracefully as possible, however, furnishing 
Mr. Harding with all the notes and other mate- 
rial he had collected for the argument, and had 
Stanton treated him with consideration, the 
situation would have been freed of all embarrass- 
ment. But Stanton was utterly devoid of tact, 
and took no trouble to conceal his contempt for 
his Illinois associate. "Where did that long- 
armed creature come from, and what does he ex- 

257 



LINCOLN THE LAWYER 

pect to do in this case?" he inquired of the other 
lawyers, and this and similarly offensive com- 
ments reached Lincoln's ears. Discourtesy was 
absolutely foreign to his nature, and it is no 
wonder that it embittered and disgusted him. 
Yet the greatness of the man enabled him to sup- 
press his personal resentment, and when the 
nation had need of Stanton's undoubted talents, 
Lincoln laid aside his own feelings and tolerated 
his overbearing Secretary until he conquered him 
with kindness. 

Lincoln was recognized as a good jury lawyer 
long before he won any reputation in other lines 
of legal work. Judge Logan first noted his ef- 
fectiveness in arguments addressed to the bench; 
but despite his excellent record in the Supreme 
Court, where he won a large majority of his 
cases, he did not gain any marked recognition as 
a court lawyer until well into the fifties. He was, 
however, eminently qualified for work of this 
character. His power of analysis, pitiless logic, 
and comprehensive mental grasp of large sub- 
jects all combined to make him a formidable 
opponent in legal discussions and a powerful 
influence with the court. He could split the ears 
of the groundlings when passionate appeals were 

258 



LEGAL REPUTATION 

in order, but he was not naturally emotional; on 
the contrary, he was cool, calm, and temperate in 
word, thought, and action. Patent cases, with 
their nice problems in mechanics and engineering, 
interested him intensely, and more than once he 
constructed models with his own hands to aid 
him in trying actions of this sort which demanded 
close reasoning and afforded him practical ex- 
perience in exact scientific deductions. 1 

He took no interest in the ordinary legal ab- 
stractions discussed in court-rooms, and the 
quibbles of practice bored him; but when there 
was any real principle involved in a question of 
law he studied it with the closest attention, and 
his arguments were usually so original that they 
presented the subject in a new light, no matter 
how often it had been discussed. Thus, when the 
steamboats and the railroads were struggling for 
commercial supremacy in the Mississippi valley, 
and the right to bridge the river was in dispute, 
new and vital questions of law arose, which he 
handled in a masterful manner on behalf of the 
Rock Island Railroad. In one of these bridge 
cases which he tried in Chicago, a steamboat had 

*It will be remembered that Lincoln himself was something of 
an inventor and obtained a mechanical patent, the model for 
which is preserved in Washington. 

259 



LINCOLN THE LAWYER 

struck a pier of the railroad's bridge, and its 
owners brought a suit for damages involving 
propositions never before presented to the courts 
and requiring clear and original thought. Some 
idea of the bitterness of this contest may be 
gathered from the fact that the railroad charged 
the steamboat captain with being bribed to run 
his vessel against the bridge and thus make a 
case of obstructing navigation. This accusation 
was, of course, angrily denied; but when the 
bridge was accidentally burned, all the river craft 
gathered at the spot and let their whistles loose 
in sheer joy at the disaster. Under these circum- 
stances it required a cool head and an even temper 
to carry the day, and Lincoln was equal to the 
occasion. His argument, one of his few legal 
speeches which have been preserved, was rej>orted 
by the Hon. Robert Hitt, and it demonstrates 
Lincoln's conspicuous ability in presenting close 
questions of law, and indicates his notable de- 
velopment as a lawyer. 1 



iThe writer is indebted to the courtesy of the editors of the 
Chicago "Tribune" for a full copy of Mr. Hitt's report of this 
speech. The case was entitled Hurd et al. v. Ptailroad Bridge 
Co.. and it was tried in the United States Circuit Court, Hon. 
John McLean presiding, September, 1857. 

Colonel Peter A. Dey, one of the engineers of the old Mississippi 
and Missouri Railroad, now living in Iowa, was present at this 
trial, and advises the writer that "Mr. Lincoln's examination of 

260 



LEGAL REPUTATION 

Another notable civil cause in which he was en- 
gaged was known as the "sand-bar case," 1 in- 
volving certain accretions to the shore of Lake 
Michigan of vast importance to the Illinois 
Central Railroad, and his discussion of the law 
on behalf of his client displayed high ability and 
resourcefulness. 

Much of Lincoln's effectiveness in this class of 
work was due to his mental independence. Pre- 
cedents did not make him over-confident, and 
they never balked him. Rack of the recorded 
adjudication he sought the reason, and if it did 
not satisfy his mind, he would not accept it. Very 
few lawyers possess sufficient independence and 
originality for research of this character, and the 
average brief, though it often displays great in- 
genuity in reconciling divergent authorities, 

witnesses was very full and no point escaped his notice. I thought 
he carried it almost to prolixity, but when he came to his argument 
I changed my opinion. He went over all the details with great 
minuteness, until court, jury, and spectators were wrought up to 
the crucial point. Then drawing himself up to his full height, he 
delivered a peroration that thrilled the court-room and, to the 
minds of most persons, settled the case." 

iThis case, entitled Johnson v. Jones et al., was tried in the 
United States Circuit Court before Judge Drummond and a jury, 
in Chicago, March 19, 1860 (about two months before Lincoln's 
nomination for the Presidency), and it is the last cause of im- 
portance in which he appeared. Messrs. Buckner S. Morris, John 
A. Wills, and Isaac N. Arnold represented the plaintiff, and the 
defendants' counsel were Abraham Lincoln, Samuel L. Fuller, 
Van H. Higgins, and John Van Axman. 

261 



LINCOLN THE LAWYER 

rarely indicates any really creative thought. 
Legal argument calls for a higher order of ability 
than jury work, and it developed Lincoln's talents 
for logical reasoning until it perfected him to 
meet and refute the most ingenious debater of 
his, or possibly of any other, day. 



262 



XXIII 



LAW IN THE DEBATE 



LINCOLN had been practising on the Eighth 
-^ Circuit for five years when the bill to repeal 
the Missouri Compromise was introduced in Con- 
gress (1854) and during that time he had devoted 
himself exclusively to the duties of his profession. 
It is not possible to obtain an accurate record of 
the number of cases he tried during those five 
years, for his name was not always entered on the 
dockets when he acted as counsel for other law- 
yers, but we know that he argued at least forty 
appeals in the Supreme Court within that period, 
and the records of the various county-seats and 
the testimony of his contemporaries go far to dem- 
onstrate that no other lawyer on the circuit, and 
probably none in the State, had anything like the 
number and variety of cases which he conducted 
between 1849 and 1854. It was during the last- 
named year that the bill was introduced author- 
izing Congress to organize Kansas and Nebraska 

263 



LINCOLN THE LAWYER 

as Territories, and to this bill an amendment was 
added repealing the Missouri Compromise Act 
by which slavery was prohibited in the proposed 
new Territories. Lincoln was attending court on 
the circuit when this news reached him, and Judge 
Dickey, one of his fellow-practitioners, who was 
sharing his room in the local tavern at the time, 
reports that Lincoln sat on the edge of his bed 
and discussed the political situation far into the 
night. At last Dickey fell asleep, but when he 
awoke in the morning, Lincoln was sitting up in 
bed, deeply absorbed in thought. "I tell you, 
Dickey," he observed, as though continuing the 
argument of the previous evening, "this nation 
cannot exist half -slave and half- free." 

This is probably the first time Lincoln ever 
used the phrase which was destined to become so 
famous in later years, and shortly afterward he 
made his first direct answer to one of Douglas's 
speeches supporting the Missouri Compromise 
repeal, and the great duel of debate began. To 
say that the general public was surprised by the 
force and effectiveness of Lincoln's attack is to 
put the matter very mildly. It was fairly aston- 
ished, and the most amazed man in the community 
was probably Judge Douglas himself. He had 

264 




Judge Stephen A. Douglas 



LAW IN THE DEBATE 

been absorbed with his duties in the United 
States Senate for the past seven years, and 
Lincoln, hard at work with court duties, had vir- 
tually disappeared from his view. He had known 
him as a local practitioner and effective stump - 
speaker and country attorney, but he was not 
prepared for the logical, lawyer-like arraignment 
to which he found himself subjected, and after 
two more encounters with this new antagonist, he 
called a truce, proposing that neither he nor Lin- 
coln should make any more speeches during the 
rest of the fall campaign. To this Lincoln as- 
sented, returning to his law practice; and thus 
ended the first skirmish of what was destined to 
be one of the most notable debates of history. 

Lincoln kept steadily at his court work until 
the fall of that year, when he decided that to do 
effective service in the campaign against the ex- 
tension of slavery he would have to reenter 
politics, and, being nominated for the Illinois 
Assembly, he made the necessary canvass, and 
was elected by a great majority in November, 
1854. He had no sooner taken office, however, 
than he resigned to become a candidate for the 
United States senatorship; but his selection was 
frustrated by a combination among the local 

267 



LINCOLN THE LAWYER 

politicians, and Lyman Trumbull, another mem- 
ber of the bar, obtained a majority of the 
votes. 

This was in February, 1855, and Lincoln im- 
mediately resumed his duties on the circuit. Dur- 
ing this and the following year he argued and 
won the McLean County case for the Illinois 
Central, prepared and appeared in the McCor- 
mick reaper action, argued no less than thirteen 
appeals in the court of last resort, and otherwise 
spent the most active year and a half in his entire 
professional career. Under this daily training 
in the courts his immense latent powers steadily 
developed, his mind expanded and his confidence 
increased, and it was undoubtedly the leader of 
the Illinois bar who addressed the convention at 
Bloomington on May 29, 1856. The speech 
which he delivered on that occasion was lost to 
the world because he held the audience so spell- 
bound that even the reporters forgot their duties 
and neglected to take notes ; but those who heard 
it spread the tidings that a new champion had 
entered the political arena equipped to do battle 
with all comers. But Lincoln did not feel him- 
self fully prepared, and when the first Repub- 
lican convention was held at Philadelphia, a few 

268 



LAW IN THE DEBATE 

weeks later, the news that he had received one 
hundred and ten votes for Vice-President reached 
him while he was engaged in trial work at Ur- 
bana. "It can't be me they are voting for," was 
his smiling comment; "there 's another great man 
of the same name somewhere in Massachusetts. 
It 's probably him." 

Important events followed in quick succession, 
but Lincoln stuck steadily to his court duties. 
Fremont and Dayton were nominated by the 
Republicans against Buchanan and Breckin- 
ridge; but except for making a number of 
speeches for Fremont in the fall, Lincoln's pro- 
fessional life went on uninterruptedly. Then 
Buchanan was elected, and shortly after his in- 
auguration the Supreme Court announced its 
decision in the Dred Scott case, which, instead of 
smothering the fires of anti-slavery agitation, 
added fuel to the flames which burst out in every 
part of the country. 

Meanwhile Lincoln continued active in the 
courts, gaining greater reputation with every 
term, and rapidly rounding into shape. From 
1856 to 1858 his name appears fifteen times in 
the Illinois appellate reports, and within the 
same period he tried the celebrated Wyant 

269 



LINCOLN THE LAWYER 

murder case in Bloomington ; his leadership of 
the bar was everywhere acknowledged, and he 
was in the midst of the most active professional 
duties when he was nominated by the Illinois 
Republicans to succeed Douglas, whose term in 
the Senate was just expiring. As on other occa- 
sions when he stood confronted by opportunity, 
the man responded to the power within him, and 
he accepted the great task which lay before him 
with calmness and quiet confidence. His op- 
ponent had the prestige of eleven years' senatorial 
experience, he was recognized as one of the best 
debaters in the upper house, and acknowledged 
as a national leader of marvelous personal charm 
— the ideal of his home constituents, and the 
probable Presidential candidate of the national 
Democracy. Lincoln did not underestimate his 
abilities; but he had taken his measure in their 
previous tilt, and he did not hesitate to challenge 
him to debate the issues of the campaign. "Mr. 
Lincoln is a very amiable gentleman," was 
Douglas's first reply; but later he yielded to the 
pressure of his friends, and accepted the chal- 
lenge. 

From the moment of collision it was evident 
that a great struggle was imminent, and, despite 

270 



LAW IN THE DEBATE 

the applause and flattery of his supporters, 
Douglas must have known in his heart of hearts 
that he had at last met his match. 

Brilliant and resourceful as he was in popular 
appeal, his dexterity with the weapons of debate 
was more than offset by Lincoln's better know- 
ledge of law and his greater familiarity with legal 
argument, and the contest hinged largely upon 
the effect of the Dred Scott case as decided by 
the Supreme Court. 

Dred Scott, it will be remembered, was a negro 
whose Missouri master, after a short residence in 
Illinois, had moved into what was then Wisconsin 
Territory (now Minnesota) with the slave, and, 
after living there for a time, had returned to 
Missouri and sold him. 

Scott thereupon sued in a Missouri court to 
establish his freedom, claiming that his residence 
in the free state of Illinois and the free Territory 
of Wisconsin had emancipated him. The first 
local court sustained his contention, but the de- 
cision was reversed on appeal. He was then sold 
to a man in New York, and began another suit in 
the federal courts of St. Louis, which promptly 
ruled against him. 

The case was then appealed to the United 

16 271 



LINCOLN THE LAWYER 

States Supreme Court at Washington, where the 
plaintiff was represented by Montgomery Blair 
and George Ticknor Curtis, and the defendant 
by Reverdy Johnson, whom Lincoln had hoped 
to meet in the McCormick case; and after two 
elaborate hearings Scott was declared a slave by 
a divided vote of the judges, two of whom wrote 
dissenting opinions. This decision of the highest 
tribunal in the country was expected to settle the 
slavery issue, for it decreed protection to slave- 
owners in the enjoyment of their property wher- 
ever situated as a constitutional right. 

Lincoln, however, promptly challenged the 
authority of any court to dispose of a great 
national issue such as the slavery question, and 
early in the debate with Douglas he forced the 
discussion of this subject to the fore. 

"In the field of argumentative statement, Mr. 
Webster at the time of his death had no rival in 
America," says Mr. Boutwell, "but he has left 
nothing more exact, explicit, and convincing than 
this extract from Lincoln's first speech in the 
great debate: e If any man choose to enslave an- 
other, no third man shall be allowed to object' 
which embodies the substance of the opinion of 
the Supreme Court of the United States in the 
Dred Scott case." 

272 



LAW IN THE DEBATE 

Douglas instantly responded by declaring that 
those who resisted the finding of the court were 
traitors fomenting revolution, and intimated 
that his adversary's duty as a lawyer was to up- 
hold the law and discountenance resistance to its 
decrees. But Lincoln's reply was so calm, fair, 
dignified, and professionally correct that it not 
only put his accuser completely in the wrong, but 
placed his opposition on a high and perfectly 
legal plane. 

"We believe as much as Judge Douglas (per- 
haps more) in obedience to and respect for the 
judicial department of government/' he asserted. 
"But we think the Dred Scott decision is er- 
roneous. We know the court that made it has 
often overruled its own decisions and we shall do 
what we can to have it overrule this. We offer 
no resistance to it. If this important decision had 
been made by the unanimous concurrence of the 
judges, and without any apparent partizan bias 
and in accordance with legal public expectation 
and the steady practice of the departments 
throughout our history, and had been in no part 
based on assumed historical facts which are not 
really true; or if, wanting in some of these, it had 
been before the court more than once, and had 
there been affirmed and reaffirmed through a 

273 



LINCOLN THE LAWYER 

course of years, it then might be, perhaps would 
be, factious, nay, even revolutionary, not to ac- 
quiesce in it as a precedent. But when, as is true, 
we find it wanting in all these claims to the public 
confidence, it is not resistance, it is not factious, 
it is not even disrespectful, to treat it as not 
having yet quite established a settled doctrine for 
the country" 

If Douglas had been permitted to choose his 
weapons he would doubtless have avoided all legal 
controversy with his trained opponent; but the 
situation did not admit of silence, and he was 
forced to discuss the meaning and effect of the 
Supreme Court's decision with a master of logic 
well versed in the maxims and principles of con- 
stitutional law. The effect of this was speedily 
apparent. At the outset of the campaign his vic- 
tory over Lincoln had seemed an absolute cer- 
tainty, but, as time wore on, the result began to 
be questioned, and each meeting with his rival left 
the outcome in greater doubt. Finally he decided 
to carry the war into the enemy's country and in 
an evil moment he propounded a series of ques- 
tions intended to confuse and embarrass his ad- 
versary. Had he remembered Lincoln's searching 
interpellation of the Polk administration in the 

274 



LAW IN THE DEBATE 

"Spot Resolutions," he might have hesitated in 
his attempt to bait the ablest cross-examiner in 
the State ; but apparently he did not perceive the 
opening which he gave to his opponent. 

"I will answer these interrogatories/' an- 
nounced Lincoln, when he received the seven 
questions intended to entrap him, "upon condition 
that he [Judge Douglas] will answer questions 
from me not exceeding the same number. I give 
him an opportunity to respond." 

No reply came from his adversary, and the 
vast audience at Freeport waited the outcome 
with a breathless interest which the keen jury 
lawyer instantly interpreted. 

"The judge remains silent/' continued Lin- 
coln, impressively. "I now say I will answer his 
interrogatories whether he answers mine or not; 
but after I have done so, I shall propound mine 
to him," 

Another breathless pause greeted this resistless 
challenge and then the speaker began reading 
Douglas's questions. No lawyer who examines 
them can fail to see that they were so loosely 
worded as to admit of a negative answer in every 
instance, rendering them utterly ineffective, and 
Lincoln disposed of them in this manner. But 

275 



LINCOLN THE LAWYER 

having shown that he could in this way techni- 
cally defeat his opponent's object, he instantly 
waived the form of the questions and replied to 
them one after the other as fairly and frankly 
as any one could desire; and, having done so, he 
propounded four counter-questions which proved 
to be the most fatal "cross-examination" or 
counter-questioning in history. 

All the inquiries were adroit, but it was the 
second which displayed Lincoln as a master of 
interrogation. 

"Can the people of the United States Terri- 
tory" he asked, "in any lawful way, against the 
wish of any citizen of the United States, exclude 
slavery from its limits prior to the formation of a 
State constitution?" 

The answer to this question required Douglas 
to interpret the Dred Scott decision. If he 
replied in the negative, the people of Illinois 
would repudiate him, because they would not 
countenance the idea that the mischief had been 
done and that slavery had already been forced 
upon the Territories. If, on the other hand, he 
answered that the Territories were still free to 
choose or reject slavery, he would have to explain 
away the Dred Scott decision, which guaranteed 

276 



LAW IN THE DEBATE 

protection to slave property in the Territories as 
a constitutional right; and this would displease 
the Southern Democracy which was then listen- 
ing to his every word to determine whether he was 
or was not a safe Presidential candidate. 

The Republican politicians of Illinois were not 
so astute as Douglas; still they foresaw that he 
would give a plausible answer to the question 
which would satisfy the local voters, and they 
begged Lincoln to withdraw the inquiry. But 
the far-sighted lawyer who framed it was deaf to 
their entreaties. "Then you will never be sen- 
ator!" was the angry warning of one of his ad- 
visers. "If Douglas answers," responded Lin- 
coln, calmly, "he will never be President." 

The fatal question was therefore left as Lin- 
coln had phrased it, and at the first opportunity 
Douglas answered by stating that the Territories 
were still free agents. They could exclude 
slavery despite the Dred Scott decision, he ex- 
plained, simply by adopting local police regula- 
tions so hostile to slavery that no slave-owner 
could enjoy his property within their boundaries. 

As soon as he had uttered it, Douglas must 
have seen that his answer involved a gross blunder 
in law; but if he had any doubt on the matter, 

277 



LINCOLN THE LAWYER 

Lincoln speedily dispelled it. How could the 
constitutional right of peaceful enjoyment of 
slave property guaranteed in the Dred Scott case 
be canceled by police or any other hostile legisla- 
tion? he demanded. Any such ordinance or law 
would be contrary to the constitution and ab- 
solutely void. Either Judge Douglas's answer 
or the doctrine of the Supreme Court was bad 
law, for the one was inconsistent with the other. 

But, illogical as it was, this fallacy caught the 
popular fancy, and Douglas, seeing that it sat- 
isfied his constituents, held to it and was elected to 
the Senate. Nevertheless, as Lincoln anticipated, 
his blunder in law cost him the Presidency, and 
not long afterward Judah Benjamin, one of the 
most ardent and able representatives of the 
South, arraigned him as a renegade and traitor. 

"We accuse him for this," he thundered: "that 
having bargained with us upon a point upon 
which we were at issue, that it should be con- 
sidered a judicial point; that he would abide the 
decision; that he would act under the decision, 
and consider it a doctrine of the party; that 
having said that to us here in the Senate, he went 
home, and, under the stress of a local election, his 
knees gave way ; his whole person trembled. His 

278 



LAW IN THE DEBATE 

adversary stood upon principle and was beaten; 
and lo, he is the candidate of a mighty party for 
the Presidency of the United States. The sen- 
ator from Illinois faltered. He got the prize for 
which he faltered; but the grand prize of his 
ambition to-day slips from his grasp because of 
his faltering in his former contest, and his success 
in the canvass for the Senate, purchased for an 
ignoble price, has cost him the loss of the Presi- 
dency of the United States!" 

Thus two years after Lincoln's question was 
put and answered Douglas was repudiated by his 
Southern friends, the Democratic party was split, 
three candidates instead of one were nominated 
against the Republicans, and the lawyer whose 
skill had precipitated this result was trium- 
phantly elected at the polls. 



279 



XXIV 



AS CANDIDATE 



LINCOLN had very little time for the practice 
■^ of the law during his campaign against 
Senator Douglas, but he did not, as is generally 
supposed, wholly abandon his professional duties. 
In the midst of the debates he tried the Arm- 
strong murder case, his most celebrated cause, 
and the moment the election was decided he 
resumed his attendance on the circuit. It was 
while he was engaged in this work that his friend 
Jesse Fell, an Illinois politician, met him in the 
streets of Bloomington, and, drawing him into a 
deserted law office, seriously suggested that he 
become a candidate for the Presidential nomina- 
tion. Mr. Fell had been traveling in the East 
during the great debates, and had been impressed 
by the repeated inquiries addressed to him con- 
cerning the personal history of the man who was 
making such a sturdy fight against the famous 
Illinois senator, and he had reached the conclusion 

280 



AS CANDIDATE 

that Lincoln was a Presidential possibility. No 
other lawyer in the country had dissected the 
Dred Scott decision as he had dissected it, either 
from a legal or from a popular standpoint, and 
of the thousands who were discussing* the slavery 
question he was the only one whose argument 
sounded fresh and convincing. 




From Maj, Wm. H. Lambert's collection. 

Chair used by Lincoln in his law office. 
(Destroyed by fire June 4, 1906.) 

But Lincoln was not then prepared to take 
Fell's suggestion seriously, and he declined for 
the time being to furnish the sketch of his life 
which his friend requested, and it was not until 
some months later that he was persuaded to re- 
consider the matter. On February 27, 1860, he 
delivered the remarkable address at Cooper 
Union, New York, which was instantly recog- 

281 



LINCOLN THE LAWYER 

nized as the ablest discussion of the slavery issues 
ever undertaken by a public speaker, and his na- 
tional reputation dates from that day. The speech 
which he delivered on that occasion was neither 
oratorical nor partisan. It was a calm, dispas- 
sionate, lawyer-like argument, keyed to the high 
intelligence of the audience to which it was ad- 
dressed, and it exhibited Lincoln as a master of 
all the historical and legal data involved in the 
subject. No one but a fully equipped lawyer 
experienced in the handling of facts, and one 
trained to make their legal bearing clear to the 
layman by logical analysis, could possibly have 
held his critical hearers as Lincoln held them, and 
his triumph was the direct result of three-and- 
twenty years of service in the courts. 

After the Cooper Union address, Lincoln 
made a short speech-making tour in New Eng- 
land; but except for this work and two speeches 
in Ohio toward the close of the previous year, he 
was engaged as usual in his law practice, and 
1859 was perhaps the busiest of his professional 
years. It was within those twelve months that he 
tried and won the famous Harrison murder case, 
and during the sessions of the Supreme Court he 
appeared in no less than ten appeals. For the 

282 



V 






$«£ 




Maj. Gen. John M. Palmer 



AS CANDIDATE 

first half of the succeeding year he was ap- 
parently equally mindful of his law business, and 
shortly before the Chicago convention at which 
he was nominated he argued one of his best- 
known cases, popularly termed the "sand-bar" 
case, in the United States Circuit Court. This, 
however, was the last case he tried. 1 

Two months later the Eighth Circuit was well 
and ably represented at Chicago by Judge Davis, 
Leonard Swett, Judge Logan, John M. Palmer, 
Richard Oglesby, Mr. Herndon, Judge Weldon, 
and others. These men had gone to the conven- 
tion determined to procure Lincoln's nomination, 
and they were well qualified for the work at hand. 

"The lawyers of our circuit," wrote Leonard 
Swett, "went there determined to leave no stone 
unturned; and really they and some of our State 
officers and a half-dozen men from various por- 
tions of the State were the only tireless, sleepless, 
unwavering, and ever- vigilant friends he had." 

Circumstances aided this little group of law- 
yers, but they were alive to every opportunity, 
and, as ex- Vice-President Stevenson pointed out 
to the writer, it was Lincoln's acquaintance with 
certain of the Indiana delegates whom he had met 

1 See foot-note, page 261. 

285 



LINCOLN THE LAWYER 

while traveling the circuit counties bordering on 
that State, which proved the opening wedge. 
Pennsylvania was the next point of attack, but 
when Lincoln heard talk of a bargain being made 
with Simon Cameron's followers, he sent positive 
instructions that no promises should be made in 
his name and that he would be bound by none. 
His zealous friends did, however, enter into an 
agreement with the Pennsylvanians which was 
destined to cause their principal much embarrass- 
ment at a later date, when he found himself vir- 
tually committed to appoint Simon Cameron to 
a cabinet position. 

When the moment for nominations arrived, it 
was N. B. Judd, one of the attorneys for the Rock 
Island Railroad, and Lincoln's constant legal 
associate, who placed his name before the con- 
vention, and when Caleb Smith, another lawyer, 
seconded it on behalf of Indiana such a roar of 
approval burst from the Illinois delegation as 
was never before heard in any convention hall. 
"Lincoln has it by sound now; let us ballot!" 
shouted Judge Logan as soon as he could make 
himself heard, and on the third ballot the leader 
of the Illinois bar and the idol of the Eighth Cir- 
cuit was declared the choice of the convention. 

286 




N. B. Judd 



Attorney for the Rock Island Railroad who nominated Lincoln 
for the Presidency 



AS CANDIDATE 

It would perhaps be too much to claim that 
Lincoln's strategic caution and masterly silence 
during the eventful months which followed were 
entirely due to his professional habit, but it can- 
not be doubted that almost every legal experience 
demonstrates the wisdom of keeping one's own 




From Maj. Win. H. Lambert's collection 

Inkstand used by Lincoln in his law office 

counsel, and the fate of the talkative witness who 
volunteers testimony after his examination is 
finished was probably not lost upon the Presi- 
dential candidate. He had given his testimony 
in full, his record was open to all who would read 
it, and despite deep provocation and the urging 

289 



LINCOLN THE LAWYER 

of many friendly advisers, he took no part in the 
fierce campaign which resulted in his election. 




From Maj. Wm. H. Lambert's collection 

Bookcase and table used by Lincoln in his law office 
(Destroyed by fire June 4, 1906) 

Even after the contest was over and he was im- 
plored to say something to reassure the seceding 
South, he resisted the temptation to interfere with 
his predecessor's administration, knowing full 
well that his advice would be disregarded and 
that it was hopeless to try to save the situation 

290 



AS CANDIDATE 

with words alone. It reminded him, he said, of 
one of his experiences on the circuit when he saw 
a lawyer making frantic signals to head off an 
associate who was making blundering admissions 
to the jury, and who continued utterly oblivious 
to the efforts which were being made to check his 
ruinous work. ' * Now, that 's the way with Bu- 
chanan and me," was his only comment. " He 's 
giving the case away and I can't stop him." 

As the hour for action drew near and Lincoln 
was on the eve of departure for Washington, he 
visited his law office to attend to some business 
matters. 

"After all these things were disposed of," 
relates Mr. Herndon, "he crossed to the opposite 
side of the room and threw himself down on the 
old office sofa, which after many years of service 
had been moved against the wall for support. He 
lay there for some moments, his face toward the 
ceiling, without either of us speaking. . . . 
He then recalled some incidents of his early prac- 
tice and took great pleasure in delineating the 
ludicrous features of many a lawsuit on the cir- 
cuit. . . . Then he gathered up a bundle of 
books and papers he wished to take with him, and 
started to go, but before leaving he made the 

17 291 



LINCOLN THE LAWYER 

strange request that the sign-board which swung 
on its rusty hinges at the foot of the stairway 
should remain. 'Let it hang there undisturbed,' 
he said, with a significant lowering of his voice. 
'Give our clients to understand that the election 
of a President makes no difference in the firm. 
. . . If I live I 'm coming back some time, and 
then we '11 go right on practising law as if nothing 
had ever happened.' . . . He lingered for a 
moment as if to take a last look at the old 
quarters, and then passed into the narrow hall- 
way." 

Mr. Herndon does not state whether or not the 
sign remained as his partner requested, but it is 
certain that to-day there is nothing to mark 
or honor any of the office sites in the city of 
Springfield, where Lincoln the lawyer practised 
during almost a quarter of a century. 1 

'A part of Mr. Lincoln's law library of 1861 is still in existence. 
In the Lambert collection: Illinois Conveyancer; Angell on Limita- 
tions. In the Vanuxem-Potter collection : A volume containing the 
Declaration of Independence, etc.; Chitty's Pleadings and Parties; 
Stephen's Commentaries on the Laws of England; Greenleaf on 
Evidence, Vol. 1; Revised Statutes of Illinois, 1844; Kent's Com- 
mentaries; Smith's Landlord and Tenant; Story's Equity Jurispru- 
dence, 1843; Parsons' Law of Contracts, 2 vols.; Wharton's Criminal 
Law; Redfield's Law of Railways; Stephen's Pleading. In the Oren- 
dorf collection: Barbour & Herrington, Eq. Dig., Vol. 3; Biddle & 
McMurtrie, Index to Eng. Com. Law, 2 vols.; Taylor on Poisons in 
Relation to MedicalJurisprudence; Barbour's Eq. Dig. of U. S., etc.; 
3 Curtis' U. S. Dig., 1846; Chitty & Temple, Law of Carriers; Angell 
& Ames on Corporations; 1 U. S. Digest for 1847. 

292 



XXV 



AS PRESIDENT 



THE condition of the government when Lin- 
coln reached Washington may fairly be 
described as chaotic. Bewildered and intimidated 
by threats of secession, most of the political lead- 
ers in the North had lost their heads, and their 
Babel of incoherencies merely aggravated the 
hopeless confusion. During the first weeks of 
December, 1860, at least forty bills, each promis- 
ing national salvation, were introduced into the 
House and Senate, and more futile propositions 
were probably never submitted to a legislative 
body. Every form of weak-kneed compromise 
from sentimental sop to abject surrender had its 
nervous advocate, and between Andrew John- 
son's puerile scheme of giving the Presidency to 
the South and the Vice-Presidency to the North, 
and vice versa, every alternate four years, and 
Daniel Sickles's wild-eyed pother about New 
York city's separation from the Union, every 

293 



LINCOLN THE LAWYER 

phase of political dementia was painfully ex- 
hibited. 

It was not only the mental weaklings who col- 
lapsed under the strain. There were men of force 
and character among the panic-stricken — men 
who bulked big in the national councils and whose 
reputation as lawyers and jurists stood firmly 
established. But in all the discussions concerning 
the legality of secession there was no note of 
authority in the utterances of the Union advo- 
cates, and the stout assertions of the secessionists 
for the most part passed unchallenged. Indeed, 
President Buchanan, who had achieved consid- 
erable distinction as a lawyer before his elevation 
to office, employed his legal talents to such poor 
advantage that he virtually argued against his 
own client, noting prohibitions, negations, and 
general impotency in every line of the Constitu- 
tion, but not seeing one word of help in it for the 
government he represented. As Seward re- 
marked, his long and argumentative message to 
Congress in December, 1860, conclusively proved, 
first, that no State had the right to secede unless 
it wanted to, and, second, that it was the Presi- 
dent's duty to enforce the law unless somebody 
opposed him. But Buchanan had the benefit of 

294 



AS PRESIDENT 

Stanton's distinguished, if ineffective, advice in 
the preparation of tliat very message, and Sew- 
ard himself, able lawyer though he was, com- 
pletely lost his head a few months later, his par- 
ticular mania taking the suicidal form of averting 
the civil perils by instigating a foreign war. 
Other distinguished members of the bar, like 
Reverdy Johnson, feeling the ground of pre- 
cedent slipping beneath their feet, stumbled for- 
ward shouting vague warnings against illegal 
steps of any kind, and Horace Greeley, almost 
beside himself with grief and fear, quavered out 
empty suggestions for conciliation which only 
increased the public perplexity. 

It was in the midst of all this deplorable help- 
lessness and distraction that Lincoln assumed his 
duties as head of the crumbling government, and 
of all the earnest supporters of the Union he 
alone displayed any calmness or presence of mind, 
and his inaugural address contained almost the 
first decisive utterance on the legal aspect of the 
situation. He was without any national reputa- 
tion as a lawyer, but his opening words were 
plainly indicative of his professional attainments. 

No State could, of its own motion, lawfully 
withdraw from the Union, he declared with flrm- 

295 



LINCOLN THE LAWYER 

ness. It was not necessary that the Constitution 
should contain any express provision forbidding 
such action. Perpetuity was implied, if not ex- 
pressed, in the fundamental law of all national 
governments. No government proper ever had 
a provision in its organic law for its own termina- 
tion. But if the United States was not a govern- 
ment proper, but a mere association of States 
bound by an agreement in the nature of a con- 
tract, then the law of contracts applied. One party 
to a legal contract might violate it, break it, so to 
speak; but mutual consent of all the parties was 
necessary before it could be lawfully rescinded. 

Such was his simple, sane, lawyer-like state- 
ment of the law — so simple, indeed, that it 
sounded inadequate to the exigencies of the 
moment; but nothing in all the learned volumes 
which have since been written on the legal aspects 
of secession has ever contradicted or disproved it. 

Again with quieting firmness he handled the 
Dred Scott case, the Fugitive Slave Law, and the 
other legal questions in dispute, divesting them 
of all technicalities and disregarding their com- 
plicated refinements until he reached the real 
issues and showed that all the points in contro- 
versy could be adjusted by well-recognized prin- 

296 



AS PRESIDENT 

ciples of law. In a word, he placed the secession- 
ists for the first time on the defensive, appealed to 
the deep law-abiding sentiment of the American 
people, and afforded the supporters of the Union 
a firm, legal foothold. He knew the moral effect 
of a legal authority which the people could under- 
stand, and the importance of his clear, prompt an- 
nouncement can not be overestimated. 

But it was when he touched upon the frenzied 
proposals for compromise that his professional 
knowledge showed to best advantage. He had 
been repeatedly advised, after his nomination, to 
assure the South that he would do nothing to in- 
validate slavery, and when he refused to make 
any premature announcement of his policy, some 
of the knee-shaking compromisers introduced 
and passed an amendment in Congress to the 
effect that the Federal Government should never 
interfere with any domestic institution of the 
States, including that of persons held in slavery. 
Those who fathered this amendment firmly be- 
lieved it would reconcile the South, and con- 
sidered it of vital importance, while it met with 
a storm of denunciation from those who regarded 
it as an absolute surrender of basic principles. 
But Lincoln instantly saw that such a provision 

297 



LINCOLN THE LAWYER 

was powerless for either good or evil, and 
amounted to nothing more than a reaffirmation 
of the Constitution. The Federal Government 
had no power under the Constitution to interfere 
with any domestic institution of the States, and 
it was as puerile as it was superfluous to record 
the fact in a solemnly worded amendment. 
"Holding such a provision to now be implied con- 
stitutional law," Lincoln coolly remarked of the 
amendment, "I have no objection to its being 
made express and irrevocable." 

This plain, calm and gravely humorous ex- 
position of the legal aspects of the situation 
shows an experienced lawyer well grounded in 
the fundamental principles of law, and it ef- 
fectually stilled the warring factions in the North 
by demonstrating the emptiness of their dispute. 

Indeed, if argument could have averted the 
impending perils, Lincoln's initial utterance 
would have carried the day, for no one has ever 
challenged the findings of fact or overruled the 
conclusions of law of his first inaugural. It is a 
masterpiece of pleading which alone should en- 
title him to high rank in the profession. 

A few months after he had given this signal 
proof of professional ability, circumstances arose 

298 



AS PRESIDENT 

which subjected his legal qualities to a test 
of almost unparalleled severity, and had he not 
responded, the history of this country might not 
read as it does to-day. Shortly after Sumter was 
fired upon, but before any serious collision had 
occurred, England and France issued proclama- 
tions of neutrality, and this practical recogni- 
tion of the Confederacy, which aroused public 
indignation throughout the North, provoked 
Seward almost beyond endurance, and throwing 
caution to the winds, the great New York lawyer 
penned a note of instructions to the American 
minister in London, couched in such sharp and 
peremptory language that its presentation to the 
British authorities must have instantly resulted in 
the severance of all diplomatic intercourse. But 
the man to whom the angry Secretary sub- 
mitted his proposed despatch was a master of 
self-control, schooled by the discipline of the 
court-room until he was proof against all prov- 
ocation, and he calmly redrafted the instru- 
ment, in the quiet of his study. In its original 
form it was a hot-headed rebuke. It left his 
hands a model of diplomatic remonstrance— 
dignified and firm, exhibiting the reserve of a 
wise counselor sure of his own cause, but offering 

299 



LINCOLN THE LAWYER 

neither menace nor affront to the parties ad- 
dressed. No layman could possibly have worded 
that all-important paper with equal skill, and it 
is not too much to say that Lincoln's professional 
caution and astuteness saved a situation fraught 
with direst national perils. Certainly his inter- 
lineations, suggestions, and emendations, as they 
appear on Seward's manuscript, of themselves 
afford a lesson in legal sagacity and foresight 
worthy the closest scrutiny of every student of 
the law. 

The times demanded a lawyer, and a lawyer of 
ability. The average practitioner would have 
been appalled by the situation. Menacing legal 
obstacles were interposed to every act of the ad- 
ministration, new questions presented themselves 
for consideration at every turn, and a man with a 
smattering of legal knowledge or no legal knowl- 
edge at all might easily have been fretted to 
impotency by letting I-dare-not wait upon I- 
would, for precedents were wanting, and in 
the many imperious demands of the moment 
timidity or recklessness spelled equal ruin. 
There was no positive, adjudicated authority for 
calling out the militia to suppress civil insurrec- 
tion; there was no express provision supporting 

300 



AS PRESIDENT 

the proclamation of blockade ; no precedent could 
be cited for the muster of the three-year volun- 
teers; and the power of the executive to increase 
the regular army and navy was seriously disputed, 
to say nothing of his right to suspend the writ of 
habeas corpus. The conditions were all new, but 
the situation admitted of no delay. Counsel were 
not wanting, but the ablest of them differed 
among themselves, and every shade of opinion 
was represented in the discussion of these and 
kindred questions. The extremists, free of all 
responsibility, were urgent for prompt action, 
heroic measures, martial law, and every other 
means, legal or illegal, to effect their purposes; 
the opposition was untiring in its demands for 
the judicial interpretation of each letter of the 
law. Under such circumstances it naturally fol- 
lowed that every exhibition of caution on the part 
of the administration was denounced as coward- 
ice and every decisive action was hailed as usur- 
pation. True to his training begun in the days 
when Stuart left him to answer his own questions 
in the dingy Springfield office, Lincoln did his 
own thinking on the momentous problems which 
he encountered, and he solved them without any 
attempt to shift responsibility for the result. He 

301 



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&^y 




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cr^-tJ 



LS}/ftsyt^«X' erf* . Oi-cs>^a> *~~' fu^z-cjf 3 C^fCj /uz-^ z^^L-^ -Ka^^y 
C^riW^ erf* £u~~ /i~e^%<j->-s en^C erf* A^^-*^ g)/ja£j ^S e^t,-r€? 

£M, jfrvy Q^^~>} CL^O C^fCo nj2~^ZJ*-fi^ erf* P^v<-, < &ycJCj CL^^cAy 



vvj f-T-*-4S <»xv £&j /Xv.c^^v trf Pj^j ^\u T^S^L 



Cjf <£~^^ *u*~J&i- -taJO&g* 
J*X~~*\, ^70^-y jf&T^-r ' <7"Z-C 




From Major Wm. H. Lambert's collection 

First draft in Lincoln's handwriting, of a bill for the emancipation 
of slaves in Delaware 

This and the second draft on page 306 were written by Lincoln in November, 
1861. The friends of the measure, in Delaware, rewrote one of these drafts, but as 
the bill was sure to be voted down it was never introduced in the state legislature. 

302 



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s^a -*^ 



{b^t^-cr^i 



listened to advice, but seldom asked it,— one of 
his notable traits as a lawyer — and no member 
of his cabinet ever claimed to have exerted any 
paramount influence upon his actions. 

But if the times demanded bold, fearless de- 
cision, and firmness, they also necessitated argus- 
eyed caution and shrewdness. 

All the enemies of the Union were not in the 
Confederate armies, and thousands of sharp, 
cunning plotters in the North watched eagerly 
for a legal blunder of which they could take ad- 
vantage, while they attempted to intimidate Lin- 
coln to inaction by holding before him the direful 
consequences of a mistake. Indeed, when a bill 
was introduced into Congress, in 1861, to confirm 
some of his boldest decisions for which there was 
no positive legal precedent, it was bitterly 
opposed by the exponents of this badgering 
policy and was passed only after a stubborn con- 
test. 

But when at last he was jclothed with powers 
303 



LINCOLN THE LAWYER 

such as few monarchs have ever exercised, when 
the fate of men and of the very nation itself often 
depended upon a stroke of his pen, the caution 
and vigilance born of his long experience at the 
bar characterized his every action. It would be 
interesting to hear the confessions of the hun- 
dreds who called at the White House with the 
purpose of obtaining his signature to incrimi- 
nating documents, only to have their apparently 
innocent request granted in such manner that it 
defeated their sinister designs. Almost every 
line of Lincoln's writing, from the official docu- 
ment to the scribbles on the little calling-cards 
which he used to answer the thousand-and-one re- 
quests of the visitors who thronged his anteroom 
day after day, shows a master of prudence, ac- 
quainted with the dangers lurking in every piece 
of paper, and able to guard himself against sur- 
prise with apparent unconcern. 

It was a time when great events often hung 
upon trifles, when the effective man was he who 
could tell whom to trust and whom to suspect, and 
at every crisis and all hours of the day there was 
a shrewd lawyer in the White House. 

It was Lincoln the lawyer as well as the states- 
man who suggested and urged compensated 

304 



AS PRESIDENT 

emancipation upon the slave-holding States, and 
who, as counsel for that great cause, himself drew 
the draft of the bill designed for Delaware, 
which, had it been generally accepted, would have 
saved thousands of lives and millions of treasure. 

It was Lincoln the lawyer who, against his 
personal inclinations and the heaviest of moral 
pressure, resisted every effort of the abolitionists 
to deprive the South of her property rights with- 
out due process of law, and it was not until every 
legal remedy had failed that he exercised his 
authority as military commander and issued the 
Emancipation Proclamation 

It was Lincoln the lawyer who, fortified by his 
experience in hundreds of jury trials, watched 
the people to whom a mighty issue was being 
presented, and, by anticipating and interpreting 
their thought, guided popular opinion, inspired 
public confidence and at last received the tribute 
of an unprecedented verdict. It was Lincoln the 
lawyer who, knowing the crucial point in his 
cause and keeping it continually in sight, re- 
mained serenely sane in the Babel and pressed 
steadily forward, undiverted and undismayed. 

It was Lincoln the lawyer who wrote the State 
papers which are to-day recognized as models of 

305 



"i^O^XT J&fu2*uO j^C^£JZ/ £iej 'hje^C^faz^j ^£&^S-e^y -/jx^TV A^^iJT^Oc^X^yzi 



trf l^fCo /u«-~^ &^L^es <&i-v~2> tZ~e^~s o^_4 CrC-L*sT~EX^t>; P^-ov j /z^c/-- 
C^jf^-i ^-c-tT /K^r &»*, /x^^io^/ C*^{szn>~*j £^fi-*j o-r/O <r/f ^fCHZ^y ZvO 

t^Pfh^X.A £-*> *£* s&UJpC?hJL~/ fZ^^&Jc^Zj^O C&&AJ ^OsLeV /JftiZs /L^LoJjZJ, 
fL^rK-cXj ts-*J lAi jf-u^'&fLe^r &-z^a^£^G^Xj L^u3J/ <j{L&Ca+J eOjLa^J (h*-usj 

lroni Major Win. H. Lambert's collection. 

Second draft, in Lincoln's handwriting, of a bill for compensated 
emancipation of slaves in Delaware. 



306 



LINCOLN THE LAWYER 

finish and form, not only in his own country, but 
wherever statecraft is understood, and it was 
Lincoln the lawyer whose shrewdness and tact 
not only saved the nation from foreign complica- 
tions, but paved the way for one of the greatest 
international lawsuits and most notable diplo- 
matic triumphs — the Alabama arbitration and 
award. 

On the 11th of April, 1865, only four days be- 
fore his death, Lincoln spoke of the work still to 
be completed. It was the hour of countless legal 
questions concerning the status of the seceded 
states, all based upon the inquiry whether they 
were still in the Union or out of it, and hot dis- 
cussions on this delicate point were carrying the 
disputants far afield. But Lincoln had written 
that as a peacemaker the lawyer had a superior 
opportunity of proving himself a good man, and, 
true to his own teaching, the great advocate 
waived the quibbling issue aside and passed 
directly to the heart of the case. 

"That question," he remarked, "is bad as the 
basis of a controversy and good for nothing at 
all — a merely pernicious abstraction. We all 
agree that the seceded states, so-called, are out 
of their proper relation to the Union, and that 
18 307 



* (^4^ : €^rie^l A^Ac- A^?77w) ^-e-O cn~s Q^>*^rz^~f 
cCt~ jt^VuD &-p>o erf cjS^ p^c-^^7 U^jCZ&> <&Z-i~4-~*o--^ S^f^— 

cJLr " &y\JO tfjC£Zj urtn~£rA=o ^a-*-<^-0 /Z yjCct-^-O £$o (h-*er*~a-y 
^f^f%~^j / Jt-eXT &fuo Jyx^jLi j£j& cl£Xi£Za^*o c*~£j t^/ <$ x ^*^~~2 &&> 

Jit <^/Z^Z£Z$ ^^v_i2_^ /^£U/ £j ft)/. f£4>. ^Cw ^ 

From Major Win. H, Lambert's collection. 

Lincoln's comments on the proposed measure of compensated 
emancipation in Delaware. 



308 



AS PRESIDENT 

the sole object of the government, civil and mili- 
tary, in regard to those States is to again get them 
into that proper relation Finding them- 
selves safely at home, it would be utterly im- 
material whether they had ever been abroad. Let 
us all join in doing the acts necessary to restoring 
the proper practical relations between these 
States and the Union, and each forever after in- 
nocently indulge his own opinion whether in 
doing the acts he brought the States from with- 
out into the Union, or only gave them proper 
assistance, they never having been out of it." 

Reading those words, who can doubt that it 
would have been Lincoln the lawyer who would 
have proved the genius of reconstruction had he 
been allowed to live and help "bind up the nation's 
wounds?" 

In the Oak Ridge Cemetery at Springfield an 
imposing pile of masonry marks the spot where 
Lincoln lies. It is embellished with mighty 
groups in bronze representing the glamour and 
heroics of war — soldiers and sailors dying and 
dealing out death — pain, horror, defiance, and 
rage depicted on their faces. 

But among all these symbols of "valiant dust" 
309 



LINCOLN THE LAWYER 

one looks in vain for some recognition of the 
lawyer, jurist, and statesman, whose whole life- 
work was an appeal to men's reason and the 
highest motives of humanity, whose only weapons 
were argument and persuasion, and who ever in- 
voked Justice and never the God of Battles for 
the triumph of his cause. 



310 



APPENDICES 



ILLINOIS SUPREME COURT MEMORIAL 

On Wednesday, May 3, 1865, the Supreme Court of 
Illinois convened in the court room at Ottawa to honor 
the memory of Abraham Lincoln. The full bench was 
present in the persons of Hon. P. H. Walker, Chief Jus- 
tice; Hon. Sidney Breese and Hon. Charles B. 
Lawrence, Associate Justices, and the proceedings are re- 
ported in 37 Illinois, Supreme Court Reports, page 1. 

As a rule, memorial addresses are not the best evidence 
for historical purposes, but the men who spoke upon this 
occasion were so intimately acquainted with Mr. Lin- 
coln's professional life that their estimates of him as a 
lawyer cannot be disregarded. 

The Hon. J. D. Caton, formerly Chief Justice of the 
court, spoke in part as follows : 

" . . . . For nearly thirty years Mr. Lincoln was a 
member of this bar. But few of us are left who pre- 
ceded him. From a very early period he assumed a high 
position in his profession. Without the advantage of 
that mental culture which is afforded by a classical edu- 
cation, he learned the law as a science. Nature en- 
dowed him with a philosophical mind, and he learned 
and appreciated the elementary principles of the law 
and the reasons why they had become established as 

313 



APPENDIX I 

such. He remembered well what he read because he 
fully comprehended it. He understood the relation of 
things, and hence his deductions were rarely wrong from 
any given state of facts. So he applied the principles 
of the law to the transactions of man with great clear- 
ness and precision. He was a close reasoner. He rea- 
soned by analogy and usually enforced his views by apt 
illustrations. His mode of speaking was generally of a 
plain and unimpassioned character, and yet he was the 
author of some of the most beautiful and eloquent pas- 
sages in our language, which, if collected together, 
would form a valuable contribution to American litera- 
ture. Those who supposed Mr. Lincoln was destitute of 
imagination or fancy knew but little of his mental en- 
dowments. In truth his mind overflowed with pleasing 
imagery. His great reputation for integrity was well 
deserved. The most punctilious honor ever marked his 
professional and private life. He seemed entirely ignor- 
ant of the art of deception or of dissimulation. His 
frankness and candor were two great elements in his 
character which contributed to his professional suc- 
cess. If he discovered a weak point in his cause, he 
frankly admitted it, and thereby prepared the mind to 
accept the more readily his mode of avoiding it. I ven- 
ture the assertion that no one ever accused him of tak- 
ing an underhanded or unfair advantage in the whole 
course of his professional career. He was equally potent 
before the jury as with the court" .... 

Mr. Justice Breese on behalf of the bench responded 
as follows: 

"• . . . It becomes us to speak of him only as a man 

314 



APPENDIX I 

and as a lawyer — as a member of an honorable profes- 
sion from whose ranks have been taken in times of the 
greatest emergency men whose high destiny it has been 
not only to guide the car of victory, but to sustain the 
weight of empire Not deeply read in his pro- 
fession, Mr. Lincoln was never found deficient in all the 
knowledge requisite to present the strong points of his 
case to the best advantage, and by his searching analy- 
sis, make clear the most intricate controversy. He was, 
besides, an honest lawyer practising none of the chican- 
ery of the profession to which he was devoted, nor any 
of those mean and little and shuffling and dishonorable 
arts all do not avoid ; nor did he seek an advantage over 
his adversary to which he was not fairly entitled by the 
merits of his cause and by the force of his arguments. 
With an exterior by no means polished, with nothing in 
the outward man to captivate, there was that within him, 
glowing in his mind, which enabled him to impress, by 
the force of his logic, his own clear perceptions upon 
the minds of those he sought to influence. He was, 
therefore, a successful lawyer, but bore with humility 
the distinction he had won. For my single self I have 
for a quarter of a century regarded Mr. Lincoln as the 
fairest lawyer I ever knew, and of a professional bear- 
ing so high-toned and honorable as justly and without 
derogating from the claims of others, entitling him to 
be presented to the profession as a model well worthy 
of the closest imitation." .... 

The court then adjourned for two days as a mark of 
respect. 



315 



II 



LINCOLN'S CASE AGAINST THE ILLINOIS 
CENTRAL R.R, 

The facts in regard to Mr. Lincoln's suit against the 
Illinois Central Railroad Company being in dispute, and 
the officials of that company having submitted to the 
writer all the proofs in their possession, it is only proper 
that both sides of the question should be fully stated. 

The railroad contends in its publication entitled 
"Abraham Lincoln as Attorney for the Illinois Central 
Railroad" that it did not refuse to pay its counsel's 
charges and that there was no substantial dispute be- 
tween them. According to the pamphlet, Mr. John 
Douglas, the general counsel of the road, advised Mr. 
Lincoln that if he paid a fee of $5,000 to a western 
country attorney without protest it would embarrass 
him with the Board of Directors, "who would not under- 
stand as would a lawyer the importance of the case and 
the consequent value of Mr. Lincoln's services." It was, 
therefore, arranged that Mr. Lincoln should bring a 
friendly suit against the road and whatever sum should 
be allowed by the court and jury would be paid without 
appeal. Mr. Lincoln, it is alleged, had himself been in 
some doubt as to what to charge and had originally sug- 
gested $2,000, but Messrs. Dubois & Miner of the State 

316 



APPENDIX II 

Auditor's office urged him not to suggest less than 
$5,000, and he finally made out and mailed to the com- 
pany a voucher for that amount. 

The suit subsequently instituted to collect this fee 
was tried before Mr. Justice Davis and jury in June, 
1857. No witnesses were examined, but by consent of 
counsel a statement was read to the jury, signed by the 
most prominent lawyers in Illinois certifying that Mr. 
Lincoln's charge was reasonable, and after a brief speech 
by the plaintiff in person a verdict was recorded for the 
full amount. Mr. Douglas was not present during this 
so-called trial, having been delayed in reaching the court 
room, and when he arrived and asked that the case be re- 
opened so that he might not appear to be in default, 
his request was granted and on the second trial, which 
occurred a few days later, the sum of $200 already re- 
ceived by Mr. Lincoln as a retainer, was credited to the 
defendant and verdict rendered for $4,800 and costs 
from which an appeal was allowed, but never perfected, 
and the judgment was finally paid in full. Several 
members of the Illinois bar who are now living and who 
were present in the court room testify that the conduct 
of the trial was extremely informal and otherwise con- 
firm this part of the story. 

The representatives of the railroad further call at- 
tention to the fact that Mr. Lincoln received a pass as 
counsel for the railroad on December 31, 1857, after 
the institution of his suit, and that he apparently con- 
tinued to represent the company up to the time when he 
was elected to the presidency. All this, it is maintained, 
demonstrates that the corporation never refused to pay 

317 



APPENDIX II 

Mr. Lincoln's charges — that the litigation was a 
friendly formality and that the relations between counsel 
and client were not affected thereby. 

There is, however, another version of the facts. It 
has been asserted by Lincoln's law partner, Herndon, 
who states that he received half the fee, that Lincoln 
originally put in a bill for $2,000, which was rejected 
by the company's officials with the comment that that 
was as much as a first-class lawyer would charge, which 
reply resulted in Lincoln's withdrawal of the bill and a 
prompt suit against the company for the full value of 
his services, which he placed at $5,000, he .and his 
partner "thanking the Lord" that the avaricious cor- 
poration had "fallen into their hands." This statement 
has often been quoted since it was first published many 
years ago and it has not, until recently, been contra- 
dicted. If it depended wholly upon Herndon's evidence, 
it might perhaps be disregarded, for its tone and inac- 
curate details are suspicious circumstances, but there 
is corroboration, for Mr. Lincoln's "declaration" or 
complaint goes far to demonstrate that the de- 
fendant did refuse to pay his charges. In this docu- 
ment, which is in his own handwriting, after setting 
forth his claim for $5,000, he continues "yet the said 
defendant (although often requested so to do) has not, 
as yet, paid said sum of money or any part thereof, 
but so to do has hitherto wholly neglected and refused, 
and still does neglect and refuse." Of course, it may 
be claimed that this language and the corporation's 
written denial of the debt (in its answering plea) were 
mere formalities. Nevertheless, it is well known that 

318 



APPENDIX II 

lawyers dislike to sue for their services, no matter how 
just their charges may be, as such action always opens 
them to the accusation of having made an unreasonable 
claim and places them, to that extent, in a false position, 
and it is not probable that Lincoln relished this dis- 
position of his account. Certainly the client who thus 
refers his lawyer to the courts for satisfaction has no 
reason to complain if the action is misunderstood. 

Moreover, the reason assigned for the Illinois Cen- 
tral's action in Lincoln's case — that the Board of Direct- 
ors would not be able to comprehend the importance and 
value of his services without the aid of a jury — is not 
complimentary, either to the intelligence or the sincerity 
of the Board, nor is it otherwise convincing. However, 
the evidence being conflicting, the defendant is entitled 
to whatever benefit there is in the doubt. 



319 



Ill 



LINCOLN'S CASES IN THE ILLINOIS COURT 
OF LAST RESORT 

The following is a list of Mr. Lincoln's cases in the 
Supreme Court of Illinois — the highest appellate tri- 
bunal in the state — showing a record rarely, if ever 
equaled in his day. 

Scannon v. Cline 3 Ills. 456 

Cannon v. Kinney 4 Ills. 9 

Maus v. Worthing 4 Ills. 26 

Bailey v. Cromwell 4 Ills. 71 

Ballentine v. Beall 4 Ills. 203 

Elkin v. The People 4 Ills. 207 

Benedict v. Dellihunt 4 Ills. 287 

Abrams v. Camp 4 Ills. 291 

Hancock v. Hodgson 4 Ills. 329 

Grable v. Margrave 4 Ills. 372 

Averill v. Field 4 Ills. 390 

Wilson v. Alexander 4 Ills. 392 

Schlencker v. Risley 4 Ills. 483 

Mason v. Park 4 Ills. 532 

Greathouse v. Smith 4 Ills. 541 

Watkins v. White 4 Ills. 549 

320 



APPENDIX III 

Payne v. Frazier 5 Ills. 55 

Fitch v. Pinckard 5 Ills. 69 

Edwards v. Helm 5 Ills. 142 

Grubb v. Crane 5 Ills. 153 

Pentecost v. Magahee 5 Ills. 326 

Robinson v. Chesseldine 5 Ills. 332 

Lazell v. Francis 5 Ills. 421 

Spear v. Campbell 5 Ills. 424 

Bruce v. Truett 5 Ills. 454 

England v. Clark 5 Ills. 486 

Johnson v. Weedman 5 Ills. 495 

Hall v. Perkins 5 Ills. 548 

Lockbridge v. Foster 5 Ills. 569 

Dorman v. Lane 6 Ills. 143 

Davis v. Harkness 6 Ills. 173 

Martin v. Drey den 6 Ills. 187 

Warner v. Helm . 6 Ills. 226 

Favor v. Marlett 6 Ills. 385 

Parker v. Smith 6 Ills. 411 

Stickney v. Cassell 6 Ills. 418 

Kimball v. Cook 6 Ills. 423 

Wren v. Moss 6 Ills. 560 

Morgan v. Griffin 6 Ills. 565 

Cook v. Hall 6 Ills. 575 

Field v. Rawlings 6 Ills. 581 

Broadwell v. Broadwell 6 Ills. 599 

Rogers v. Dickey 6 Ills. 636 

Kelly v. Garrett 6 Ills. 649 

McCall v. Lesher 7 Ills. 46 

321 



appendix; hi 

McCall v. Lesher 7 Ills - 47 

Wren v. Moss 7 Ills - 72 

Risinger v. Cheney . ' . 7 His. 84 

Eldridge 0. Rowe 7 Ills - 91 

Frisby w. Ballance 7 Ills. 141 

Hall'.Irwin 7 His. 176 

City of Springfield v. Hickox .... 7 Ills. 241 

Ross,.Nesbit • • • • 7Bls.!B58 

Simpson v. Ranlett 7 llls - 312 

Murphy ». Summerville ...... 7 Ills. 360 

Trailer v. Hill . ........ 7 Ills. 364 

Chase *. Debolt 7 ^s. 371 

Smith ,.Byrd 7 ^ *« 

Moore ». Hamilton 7 Ills - 429 

McNamara v. King 7 Ills * 432 

Ellis,.Locke i riIl».4B9 

Bryant Wash 7 Ills. 557 

Wright v. Bennett llf'tVo 

Kincaid *. Turner. 7 Ills - ^ 8 

Cunningham v. Fithian 7 IUs ' 65 ° 

Wilson v. Van Winkle 7 His. 684 

Patterson v. Edwards 7 Ills - 720 

Driggs w. Gear 8 IUs * 2 

Edgar Co. *. Mayo 8 JJls. 82 

Roney ». Monaghan « J s ' ~ 

The People *>. Brown 8 llis - b/ 

Munsell a. Temple 8 ^'.S 

^ n t» ■ .... 8 Ills. 186 
Fell v. Price 

:if "s T £ or •••::::: SSS 

322 



APPENDIX III 

Garrett v. Stevenson 8 Ills. 261 

Henderson v. Welch 8 Ills. 340 

Cowles v. Cowles 8 Ills. 435 

Wilcoxon v. Roby 8 Ills. 475 

Trumbull v. Campbell 8 Ills. 502 

Cooper v. Crosby 8 Ills. 506 

Shaeffer v. Weed 8 Ills. 511 

Anderson v. Ryan 8 Ills. 583 



Wright v. McNeely 1 

Webster v. French 1 

Adams v. The County of Logan . 1 

Pearl v. Wellmans 1 

Lewis v. Moffett 1 

Austin v. The People 1 



Ills. 241 
Ills. 254 
Ills. 336 
Ills. 352 
Ills. 392 
Ills. 452 



Williams v. Blankenship 12 Ills. 122 

Smith v. Dunlap 12 Ills. 184 

McHenry v. Watkins 12 Ills. 233 

Whitecraft v. Vanderver 12 Ills. 235 

Enos v. Capps 12 Ills. 255 

Ward v. Owens 12 Ills. 283 

Linton v. Anglin 12 Ills. 284 

Penny v. Graves 12 Ills. 287 

Compher v. The People 12 Ills. 290 

Major v. Hawkes 12 Ills. 298 

Webster v. French 12 Ills. 302 

The People v. Marshall 12 Ills. 391 

Dunlap v. Smith 12 Ills. 399 

Dorman v. Tost 13 Ills. 127 

Perry v. McHenry 13 Ills. 227 

19 323 



APPENDIX III 

McArtee v. Engart 13 Ills. 242 

Manly ». Gibson 13 Ills. 308 

Harris v. Shaw 13 Ills. 456 

Banet v. The Alton & Sangamon R. R. 

Co., 13 Ills. 504 

Klein v. The Alton & Sangamon R. R. 

Co., 13 Ills. 514 

Casey v. Casey 14 Ills. 112 

Ross v. Irving 14 Ills. 171 

Pry or v. Irving 14 Ills. 171 

Alton & Sangamon R. R. Co. v. Carpenter . 14 Ills. 190 
Alton & Sangamon R. R. Co. v. Baugh . .14 Ills. 211 

Stewartson v. Stewartson 15 Ills. 145 

Byrne v. Stout 15 Ills. 180 

Pate w. The People 15 Ills. 221 

Sullivan v. The People 15 Ills. 233 

Humphreys v. Spear 15 Ills. 275 

The People v. Blackford 16 Ills. 166 

Edmunds v. Myers 16 Ills. 207 

Edmunds v. Hildreth 16 Ills. 214 

Gilman v. Hamilton 16 Ills. 225 

The Chicago, Burlington & Quincy R. R. 

v. Wilson 17 Ills. 123 

Browning v. The City of Springfield . .17 Ills. 143 
Turley v. The County of Logan .... 17 Ills. 151 

Armstrong v. Mock 17 Ills. 166 

Booth v. Rives 17 Ills. 175 

324 



APPENDIX III 

Myers v. Turner 17 Ills. 179 

Myers v. Turner 17 Ills. 179 

Hildreth v. Turner 17 Ills. 184 

Moore v. Vail 17 Ills. 185 

Moore v. Dodd 17 Ills. 185 

Loomis v. Francis > 17 Ills. 206 

The Illinois Central Railroad Co. v. The 

County of McLean 17 Ills. 291 

Johnson v. Richardson 17 Ills. 302 

Phelps v. McGee 18 Ills. 155 

County of Christian v. Overholt . . . .18 Ills. 223 

McConnell v. The Delaware M. S. Ins. Co. . 18 Ills. 228 

The People v. Watkins 19 Ills. 117 

Partlow v. Williams 19 Ills. 132 

Illinois Central R. R. Co. v. Morrison & 

Crabtree 19 Ills. 136 

Illinois Central R. R. Co. v. Hays ... 19 Ills. 166 

The People v. Witt 19 Ills. 169 

Sprague v. The Illinois River R. Co. . . 19 Ills. 174 

McDaniel v. Correll 19 Ills. 226 

The People v. Bissell 19 Ills. 229 

The People v. Hatch 19 Ills. 283 

Wade v. King 19 Ills. 301 

Kester v. Stark 19 Ills. 328 

St. Louis, Chicago & Alton R. R. Co. v. 

Dalby 19 Ills. 353 

Laughlin v. Marshall 19 Ills. 390 

The People v. Ridgley 21 Ills. 65 

325 



APPENDIX III 

Tonica & Petersburg R. R. Co. v. Stein . 21 Ills. 96 

Trustees of Schools v. Allen 21 Ills. 120 

Crabtree v. Kile 21 Ills. 180 

Town of Petersburg v. Metzker ... 21 Ills. 205 

Young v. Ward 21 Ills. 223 

Smith v. Smith . . . 21 Ills. 244 

Terre Haute & Alton R. R. Co. v. Earp . 21 Ills. 291 

Brunclage v. Camp 21 Ills. 330 

Constant v. Matteson 22 Ills. 546 

Leonard v. Adm'r of Villars 23 Ills. 377 

Cass v. Perkins 23 Ills. 382 

Ritchey v. West 23 Ills. 385 

Miller v. Whittaker 23 Ills. 453 

Young v. Miller 23 Ills. 453 

Gill v. Hoblit 23 Ills. 473 

Kinsey v. Nisley 23 Ills. 505 

Gregg v. Sanford 24 Ills. 17 

Columbus Machine Manufacturing Co. v. 

Dorwin 25 Ills. 169 

Columbus Machine Manufacturing Co. v. 

Ulrich 25 Ills. 169 

Mr. Lincoln also appeared in Cunningham v. Fithian, 6 
111. 269. His name was omitted in this case in the reports 
by an error. (See 7 111. 650.) 

He likewise appeared in Walker v. Herrick, 18 111. 570, 
and in State v. Illinois Central, 27 111. 64- (See Abraham 
Lincoln as Attorney for the Illinois Central Railroad Com- 
pany," a pamphlet published by the Illinois Central in 
1905-) 

326 



APPENDIX III 

Mr. Lincoln also appeared in the following cases in the 
Federal Courts : 

Lincoln v. Tower 2 McLean 473 

January v. Duncan 3 McLean 19 

Sturtevant v. City of Alton 3 McLean 393 

Lewis v. Administrators of Broadwell . . 3 McLean 568 

Voce v. Lawrence 4 McLean 203 

Lafayette Bank v. State Bank of Illinois . 4 McLean 208 

Moore v. Brown 4 McLean 211 

Kemper v. Adams 5 McLean 507 

United States v. Prentice 6 McLean 65 

Columbus Insurance Co. v. Peoria Bridge 

Ass'n 6 McLean 70 

United States v. Railroad & Bridge Co. . . 6 McLean 516 
McCormick v. Manny „ 6 McLean 539 

Of his 175 cases in the Illinois Supreme Court Mr. Lin- 
coln won 92; of his 12 cases in the United States Circuit 
Court final decision is reported in only 10. Of these he 
won 7. Of his 3 cases in the United States Supreme Court 
he won 2. 



327 



INDEX 



INDEX 



Abolition, opinion on, 44 
Adams, James, case against, 84 
Admission to bar, 59-61, 117 
Advice to Lawyers, 33, 76, 102, 

199, 241 
Alabama Arbitration, 307 
Argument, Lincoln's first, 40 
Ancestry, 1-7 

Anderson, Major Robert, 47 
Appellate courts, record in, Ap- 
pendix 
Apprenticeship, law, 70-81 
Armstrong case, 229-234; trial 

of, 280 
Army experience, 46-49 
Arnold, Isaac M., 209, 228, 252, 
261 



B 

Baddeley, case for, 80 
Bailey v. Cromwell, 117 
Baker, E. D., 89, 93, 128, 206 
Beardstown, 231 
Benjamin, Judah P., 278 
Benjamin, Judge R. M., 60 
Berry & Lincoln, 49 
Birthplace, 7 

Birthright to the law, 1-10 
Black Hawk war, 46-48 
Blackwell, Robert, 252 
Blackstone's Commentaries, 50, 

119 
Blair, Montgomery, 272 
Books, 9 

Boonville Court, 16-19 
Boutwell, George, 272 
Boyhood, 6-8, 13, 14 
Breckenridge, 18 
Briefs, 40, 215, 247, 251-4; 256-7 
Browning, O. H., 90, 206, 252 
Buchanan, 97, 290, 294 
Burr, Aaron, 33 
Butterfield, Justin, 157 



Calhoun, 51 

Cameron, Simon, 286 

Candidate, Lincoln as, 280-292 

Cartwright, Peter, 145, 236 

Case-lawyer, 129 

Cases, Lincoln's first, 82; early, 
82-95; in U. S. Supreme 
Court, 246; in Illinois Su- 
preme Court, 248; and Ap- 
pendix; jury, 202; Logan & 
Lincoln's, 125-6; Lincoln & 
Herndon's, 144; full record 
of, 248, and Appendix 

Cass, General, 47-9 

Caton, Judge, 249 

Chase, Salmon, 207 

Chicago, cases in, 259, 261 ; Con- 
vention, 195, 285; Tribune, 
260 

Circuit, life on, 104-111 

Circuit, riding the, 160-177 

Clark, General Marston, 22 

Clerkship, 96-103 

Clientage, 196, 200, 248, 249 

Competitors, early, 82-95 

Congress, candidacy for, 127-9, 
132; election to, 145; record 
in, 148-158 

Congressional Dictionary, 146 

Constitution, 296, 298 

Cooper Union speech, 281, 282 

Counsel for lawyers, 200 

Court-houses, primitive Indiana, 
19, 20; primitive Illinois, 62, 
69 

Court lawyer, Lincoln as, 109, 
260, 268 

Courts, early success in, 104-111 

Crawford, 9 

Criminal practice, 235 

Cross examiner, Lincoln as, 221- 
34 

Curtis, George T., 272 

Cullom, Shelby M., 236 



331 



INDEX 



D 

Davis, Judge David, 90, 94, 133, 

172, 175, 178-84, 194-6, 212-3, 

242 
Decatur, 111., 27 
Dey, Peter A., 260 
Dickerson, E. H., 255 
Dickey, Judge, 264 
Dignity, 175 
Diflworth, Caleb J., 232 
Disorderly habits, 96-101 
Douglas-Lincoln debate, 263-280 
Douglas, Stephen A., 36, 60, 89, 

93, 105, 110, 122, 229, 264, 265; 

his errors of law, 229, 277-280 
Dred Scott case, 45, 269, 271-9, 

281, 296 
Drummond, Judge, 261 
Dungee v. Spencer, 242-4 
Dunn, Thomas F., 235-6 

E 

Early practice, 56-61 
Education, Lincoln's, 7-10, 197- 

200 
Edwards, N., 90 
Eggleston, Edward, 229 
Eighth Circuit, 167; map of, 

169 
Emancipation, compensated, 

304-305 
Ethics, Lincoln's professional, 

31-5, 52-5, 102-3, 235-44 
Euclid, study of, 198 
Ewing, James, 193, 222 
Examination for Bar, 59 



Federal Courts, cases in, 327 
Fees, 85, 144, 241-4 
Fell, Jesse, 280 
Ferguson, v. Kelso, 29 
Ford case, 22 
Ford, Governor, 60-61 
Forsythe v. Reynolds, 246 
Fraim, trial of, 235-6 
Freeport questions, 275-6 
Fugitive Slave law, 45, 296 
Fuller, Samuel L., 261 
Fun-maker, Lincoln as, 190-5 



G 

Gentry ville, 14 

German, Lincoln's study of, 197 
Goodrich, Grant, 159, 161, 252 
"Graysons, The," 229 
Greeley, Horace, 295 
Green," Bowling, 29-30, 57 
Grub v. Crane, 131 

H 

Haines, Hon. James, 186-7 
Hall v. Woodward, 182 
Hardin, John J., 90, 128 
Harding, 255 
Harrison, trial of "Peachy," 

235-8, 282 
Hawthorne v. Woolridge, 82-83 
Herndon, William H., 132, 139- 

44, 159-60, 175, 216, 236, 239, 

285, 290, 292 
Higgins, Van H., 261 
Hingham, Lincolns of, 5 
Hitt, Robert R., 221, 224, 260 
Hoblit, James T., 224-6 
"Honest Abe," 31 
Hudson case, 24 
Hurd v. Railroad Bridge Co., 

259-60 

I 

Ideals of law, 31-34, 42-5 
Illinois Central Railroad, 240, 

251-254, 261, 268; case against, 

Appendix; v. McLean, 250, 

268 
Illinois primitive bench and bar, 

56-69 
Independence, 101 
Indian fighting, 46-9 
Indiana primitive bench and 

bar, 19-26; Revised Statutes, 

10-13, 57 
Ingersoll, Robert G., 192 
Inspiration, professional, 13-18 



Jefferson, Joseph, 87; Thomas, 

99 
Johnson, Andrew, 293; Reverdy, 

255, 272, 295; v. Jones, 261 



332 



INDEX 



Joy, J. F., 250 

Judd, N. B., 252, 286, 287 

Judge, Douglas as a, 131 ; Lin- 
coln as a, 188-91 

Judges, pioneer, 21-25, 62-68 

Jury, 182, 215 

Jury, backwoods, 20-21 

Jury-lawyer, Lincoln as a, 100, 
208-221 



K 



Kelly v. Garrett, 132 



Lacey, Lyman, 229 

Latin, legal use of, 131 

Law in the debate, 263-80; Lin- 
coln's knowledge of, 198, 267- 
80; Lincoln's opinion on, 42-5; 
student, Lincoln as, 46-56 

Leader of Bar, 196-207 

Lecture on law, 33, 102-3 

Legislature, 104; election to, 56- 
58; first canvass for, 48; Illi- 
nois, 90 

Lewis v. Lewis, 246 

Library, 75 

Lincoln & Herndon, 134-47; 
cases, 144 

Lincoln, Nancy, 7; Robert T., 
164; Thomas', 6; town of, 133, 
135; v. Illinois Central R. R., 
252-4, Appendix 

Linder, General, 181 

Litigation, dislike of, 102 

Logan, Judge Stephen T., 60, 
93, 105, 112-115, 183, 206, 
236, 252, 258, 285; & Lincoln, 
112-34 

Logic, 262 

Lovejoy, Elijah, 141 

M 

McClernand, John A., 90, 236 
McCormick reaper case, 207, 

255-8 
McDougall, James A., 81, 91, 94 
Managing clerk, Lincoln as, 96- 

102 
Mast fed lawyer, 198 



Memorials, Bar, Appendix 
Memory, 11, 12 

Methods in court-room, 208-220 
Metzker murder case, 229-234 
Mississippi bridge case, 260 
Missouri Compromise, 263-4 
Morris, Buckner S., 261 
Murder trial, primitive Illinois, 

65-67 
Murder Cases, 18, 65-7, 229-238 
Myers Building, 160 
Myths, 1-18 

N 

Neutrality, International, 299 
New Salem, 28, 35, 39 
Nick name, 31, 175 

O 

Oak Ridge Cemetery, 309 
Offices, law, 74, 127, 160, 173, 292 
Offutt, 28, 46 

Oglesby, Richard, 206, 285 
Opinions of contemporaries, 
Oratory, opinion of, 199, 216 
Oregon, Governorship, 158 
Orendorff, General A., 249-50 
Orgmathorical Court, 176, 242 



Palmer, John M., 206, 236, 283-5 
Partnerships, 70-81; 112-33; 141, 

147 
Patent cases, 207, 255-8; 259 
Peacemaker, Lincoln as, 102-3, 

244, 307 
People v. Green, 65-68 
Pettifogging, 57 
Phillips, Isaac N., 88 
Polk, President, 151, 274 
Poore, Ben: P., 158 
Postmaster, Lincoln as, 96 
Practice on the circuit, 200-7 
Preparation for Bar, 75-81, 199, 

246 
President, Lincoln as, 293-310 
Prince, E. M., 211 
Psychic powers, Lincoln's, 227 
Purple, Judge Norman, 252 



INDEX 



Reconstruction, Lincoln on, 
308-9 

Record of cases, 248, and Ap- 
pendix 

Reputation at Bar, 199, 200, 
208; 245-63 

Revised Statutes of Indiana, 
10-13 

Reynolds, Judge John, 62-68 

Rock Island Railroad, 249, 286 

Rogers v. Dickey, 132 



Sand Bar case, 261, 285 
Sangamon County, 56, 60; 

River, 39-40 
Santa Anna, 148-9 
Schooling, 7-8 
Scott, Dred, 45, 269, 271-9; 281, 

296 
Scott, Judge, 206 
Scammon v. Cline, 78 
Seward, 206, 294, 299 
Shaw, J. Henry, 232-3 
Shop keeping, 49-50 
Smith, Caleb, 286 
Speed, Joshua, 59, 175 
Spot Resolutions, 151-4 
Springfield, 19, 30, 48, 58, 69, 79, 

84-5; 88, 125 
Stanton, Edwin M., 206-7, 255-8 
Stevenson, Adlai E., 285 
Stories, 22-4, 123, 217-20, 248, 

291 
Story telling, 192-5 
Stuart, Major John T., 48, 59, 

71, 90, 206; & Lincoln, 59, 70- 

81, 96-8; & Lincoln's fees, 85; 

& Lincoln's law office, 74 
Student, Lincoln a law, 46-56 
Supreme Court, U. S., cases in, 

245-6 



Surveying, 51, 56; legal opinion 

on, 52, 53 
Swett, Leonard, 183, 206, 210, 

212-3, 238, 285 



Talisman steamer, 141 

Taney, Judge, 246 

Taylor, President, 154-6 

Tazewell County, 182, 186 

Technicalities, legal, 100 

Temperament, 137, 138 

Texas, 148-9 

Thomas, W., 249 

Thornton, James T., 76 

Training, 246 

Treat, Samuel, 60, 164-5 

Trent case, 121 

Trumbull, Hon. Lyman, 90, 94 

Turnham, 10 



U 



Usury, opinions on, 41 



Van Arman, John, 261 



W 

Walker, William, 230 
Wealth, opinioi s on, 119 
Webster, Daniel, 86, 158 
Weldon, Judge Lawrence, 36-7, 

170, 175, 188, 190, 212, 222, 

242-3, 285 
Wells, H. G., 209 
Whitney, H. C, 188, 237 
Williams, Archibald, 252 
Wills, John A., 261 
Wright case, 215 
Wyant, trial of, 235 



334 



7/ 101